STATE OF MADHYA PRADESH Vs. DEWADAS
LAWS(SC)-1982-1-41
SUPREME COURT OF INDIA (FROM: MADHYA PRADESH)
Decided on January 29,1982

STATE OF MADHYA PRADESH Appellant
VERSUS
DEWADAS Respondents

JUDGEMENT

Sen, J. - (1.) The short question involved in this appeal by special leave from the judgment and order of the Madhya Pradesh High Court is, whether an application for 'leave' to appeal under sub-section (3) of S. 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), without which no appeal under sub-sec. (1) or sub-sec. (2) thereof can be entertained, being an integral part of the appeal, must be laid before a Bench of two Judges of the High Court, under R. 1:(q) (ii), Chap. I, Part I, of the Madhya Pradesh High Court Rules, or can be heard and disposed of by a Single Judge of the High Court under R. 1 (q) of the Rules.
(2.) The material facts giving rise to the appeal are these. The State Government of Madhya Pradesh having decided to prefer an appeal under sub-sec. (1) of S. 378 of the Code, filed an application for 'leave' to appeal under sub-sec. (3) thereof, setting out therein the grounds of appeal. According to the practice prevalent in the Madhya Pradesh High Court, the application was listed, before a Single Judge, as per Rule 1 (q), Chap. I, Part I of the Madhya Pradesh High Court Rules. The learned Single Judge refused to grant leave to appeal under sub-section (3) of S. 378 on the ground that the judgment of acquittal was based on appreciation of evidence and was not perverse or unreasonable. The State Government applied for grant of a certificate under Art. 134 (1) (c) of the Constitution. The application for grant of a certificate was placed before and heard by a Division Bench. The contention on behalf of the State Government was that an application for grant of leave under sub-sec. (3) of S. 378 of the Code must be treated as a part of the appeal preferred by the State Government under sub-sec. (1) thereof, and therefore, should have been placed before a Bench of two Judges and consequently the order of the learned Single Judge rejecting the application for grant of leave under sub-sec. (3) of S. 378 of the Code was a nullity. The Division Bench, following the decision of another Division Bench in the State of Madhya Pradesh v. Narendrasingh, 1974 MPLJ (Notes) 102, rejected the contention of the State that the learned Single Judge had no jurisdiction to entertain or decide the application for leave to appeal under sub-sec. (3) of S. 378 of the Code. It, however, noticed the incongruity of the requirement that an appeal under sub-sec. (1) or sub-sec. (2) of S. 378 should be placed before a Bench of two Judges under R. 1 (q) (ii) of the Madhya Pradesh High Court Rules and the hearing and disposal of an application for leave under sub-sec. (3) thereof should be by a Single Judge, and observed:- "The matter is being examined by the rule making committee. It is rather anomalous that under Rule 1 (q) item (ii) of Chapter I of the Madhya Pradesh High Court Rules, an appeal against acquittal filed by the State Government has to be heard by a Division Bench, still the application for leave under Section 378 (3) of the Code should be laid before a Single Judge." As the case involved an important question relating to procedure and practice, and as the correctness of the decision of the High Court in Narendrasingh's case was open to question, special leave was granted by this Court.
(3.) It appears that a practice was prevalent in the Madhya Pradesh High Court, requiring the State Government or the Central Government, desirous of preferring an appeal under sub-sec. (1) or sub-sec. (2) of S. 378 of the Code, to make an application for leave under sub-sec. (3) thereof, and it was registered as a Miscellaneous Criminal Case and treated as a petition and as such placed before a single Judge for hearing as per R. 1 (q), Chap. I, Part I, of the Madhya Pradesh High Court Rules. It was only when the single Judge granted leave to appeal under sub-sec. (3), that the petition for leave was registered as a Criminal Appeal and placed before a Division Bench for admission under sub-sec. (1) of S. 384 of the Code.;


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