Appeal against order of acquittal (Section 378 of CrPc)

(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 not being an order under clause (a) 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.

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(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, 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 of the complaint for grant of such special leave to appeal from an order of acquittal is refused, no appeal from the order of acquittal shall lie even at the instance of any Government whatsoever under sub-section (1) or under sub-section (2) of Section 378 of the Code.

Under Articles 132, 134 and 136 of the Constitution of India, it may be possible to present an appeal to the Supreme Court against the order of acquittal passed by the High Court.

An appeal from an order of acquittal must be filed within the period of limitation prescribed by Article 114 of the Schedule of the Limitation Act, 1963. For the extension of the period of limitation, and for exclusion of time in computing the period of limitation, Sections 5 and 12 of the Limitation Act, 1963 would be useful.

Appeal against an order of acquittal is an extraordinary remedy. In exercising this power the High Court should give proper weight and consideration to;

(i) The views of the trial judge as to the credibility of witnesses;

(ii) Presumption of innocence in favour of the person accused in criminal cases and that presumption is only strengthened by the acquittal;

(iii) Right of the accused to the benefit of reasonable doubt regarding any guilt; and

(iv) Slowness of the appellate Court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses.

The High Court has got full judicious discretion to grant or not to grant leave to appeal against acquittal. The restrictions on the preferring of an appeal against acquittal to the High Court are intended to safeguard the interests of the accused person and to save him from personal vindictiveness.

The Supreme Court stated as follows the general principles regarding power of appellate Court while dealing with appeal against an order of acquittal:

(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) Criminal Procedure Code 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 mistake’, 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 emphasize 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 farther reinforced, reaffirmed and strengthened by 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.

In the case of appeal against acquittal, if on same evidence two views are possible, the one in favour of accused must be preferred.

Leave to appeal—Summarily rejection of application by High Court not proper:

The High Court was not justified in summarily rejecting the application for grant of leave. It was a duty to indicate reasons when it refuses to grant leave. Any casual or summary disposal would not be proper.

Refusal of leave to appeal against acquittal by the non-speaking order improper:

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. 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 had failed to do so. 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.

Acquittal of accused persons giving them benefit of doubts proper:

Where in a murder case prosecution case was that accused persons in company of main accused had come to the place of incident armed with sticks and assaulted deceased. In the post-mortem report it was not stated that deceased had sustained injuries by stick blows. Held, that as no infirmity was found in appreciation of absence of evidence regarding the injuries caused by the accused persons; hence, their acquittal by giving them benefit of doubt was proper.

Appeal against judgment—Paramount consideration of Court is to ensure to prevent miscarriage of justice:

There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.

The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not.

Appeal condoned with dismissal of appeal:

Where there was appeal acquittal and application to condone delay was also filed. Held, that aspect of delay as well as merits of the case were to be examined because there was no sufficient evidence to conflict the accused, hence, appeal appeared weak on merits. There could be no interference with the order of acquittal. However, delay was condoned but main appeal was dismissed on merits.

Appeal against acquittal—Permissibility of interference by appellate Court:

There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented.

A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process.

Appeal against acquittal where two views reasonably possible on the basis of evidence:

It is well settled that where two views are reasonably possible on the basis of the evidence on record, the one that favours the accused must be accepted. In any event in a case of acquittal if the view of the trial Court is a possible reasonable view of the evidence on record, interference by the High Court may not be justified.

Retrial could not be ordered for lapses committed by Court:

Where trial was conducted by Magistrate himself without appointing Public Prosecutor in breach of principles of procedure. Accused was acquitted on ground of such procedural irregularity. Held, that retrial could not be ordered for lapses committed by Court. It was more so because ordering retrial at appellate stage in High Court would also defeat doctrine of speedy trial under Article 21 of the Constitution.

Powers of High Court for hearing of appeal against acquittal:

Where order of acquittal had been passed by the trial Judge. Special leave petition against it was filed by National Human Right Commission (NHRC) before the Supreme Court. Held, that mere pendency of case before Supreme Court would not by itself debar High Court from hearing and deciding the said appeal.

Power of High Court in appeal against acquittal:

Where the acquittal by trial Court was found on the basis of unwarranted assumptions and manifestly erroneous appreciation of evidence by ignoring valuable and credible evidence resulting in serious and substantial miscarriage of justice. Held, that High Court could not be found fault with for its well merited interference.

Scope of appeal against acquittal:

Appeal against acquittal is circumscribed by limitation because only approach of lower Court to consideration of evidence had been vitiated by manifest illegality or conclusion arrived at by lower Court was perverse, no interference with order of acquittal was permissible. Therefore, order of acquittal made on proper appreciation of evidence could not normally be interfered.

Filing of appeals against acquittal to be taken due scrutiny and such appeals without merits to be checked from being filed:

Where respondent accused in charge of drawing the bills, collecting the amounts and disbursing salaries was alleged to be misappropriated an amount of Rs. 6301/-. Evidence found was insufficient for recording conviction and appeal was without merit. Solution for such serious offences of misappropriation of funds of Co-operative Society was that prosecutors in trial Court should be vigilant to ensure specific evidence establishing the guilt of the accused who was brought on record. Director of Prosecutions was ordered to take the corrective steps and filing of appeals also to be taken due scrutiny and such appeals without merits were checked from being filed.

Leave to appeal against acquittal—Recording of reasons must for refusal to grant leave:

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.

Leave to State to file appeal against acquittal granted:

Where trial Court had acquitted respondent accused of charge under Section 18 NDPS Act, holding that in the absence of independent public witness, testimony of police officials was not acceptable.

Leave to appeal was declined by High Court with the impugned order “Heard, No merit. Dismissed.” Held, that absence of reasons had rendered the impugned order unsustainable and was liable to be set aside. Hence, leave to State to file against appeal against acquittal was granted.

Making of strong remarks by High Court castigating Police and subordinate judiciary not proper:

It would have been desirable that the High Court did not make such strong remarks castigating the police and the subordinate judiciary, when the situation did not warrant such castigation. Judicial restraint should have dissuaded the High Court from making such unnecessary castigation.

Appeal to High Court against original or appellate order of acquittal subject to leave of the High Court:

Trial Court was required to carefully appraise the entire evidence before coming to a conclusion. If there was lapse on part of High Court in this regard. High Court was under obligation to entertain such an exercise by entertaining the appeal.

High Court under such circumstances should grant leave to appeal and entertain the appeal. In the instant case, accused respondent was acquitted by Trial Court for offences under Section 27 (1)(a) of Orissa Forest Act, 1972.

High Court was not justified in refusing to grant leave to appeal, because effect of admission of accused in the background of testimony of official witnesses needed adjudication in appeal. As questions involved were not trivial, hence, rejection of application for leave to appeal by a cryptic non-speaking one line order was improper. Impugned order was set aside and leave was granted to State to file appeal.