K. N. Singh, J. - (1.) ON a reference made by a learned Single Judge of this Court, the following question has been placed before us for decision : " Whether proviso (a) to rule 2 of Chapter V, Part I of the Allahabad High Court Rules, 1952, and the order dated 29-6-1978 passed by the chief Justice in exercise of the powers under the said proviso (a) are ultra vires of sections 368 and 369 CrPC read together ? "
(2.) THE facts giving rise to the reference of the above noted question are necessary to be noted Latif, Jafir, Chhotey and Abdul Aziz applicants stood their trial for offences under sections 302 and 323/34 IPC before the Sessions Judge, Rampur. On conclusion of trial the: Sessions Judge acquitted the applicants. Against the aforesaid order of acquittal, the State Government preferred an appeal under section 378 of the Code of Criminal Procedure, 1973 before this Court. Along with the appeal the State filed a separate Miscellaneous application for grant of leave for filing appeal as contemplated by section 378 (3) of the Code of Criminal Procedure, (hereinafter referred to as 'the Code'). THE appeal as well as the application for grant of leave both were listed together before brother I. P. Singh in accordance with the general order issued by the Chief Justice in exercise of his powers under the proviso (a) to rule 2 of Chapter V, Part I- High Court Rules, 1952. On 31-8-1984, I. P Singh, J. granted leave and entertained the appeal and directed for issue of notices and bailable warrants to the applicant-accused, in pursuance to the notice issued by the Court the accused put in appearance and tiled an application purporting to be under sections 378/384/382 of the Code read with Article 226 of the Constitution. On their behalf a submission was made before the learned Single Judge that a Judge singly has no jurisdiction to grant leave or to entertain the appeal and to issue notice to the accused in the appeal filed under section 378 of the Code. A further submission was made that proviso (a) to rule 2 of Chapter V, Part I, High Court Rules, 1952 which confers power on the Chief Justice to direct that any case or class of cases may be heard by a Bench of two Judges, as well as the order dated 29-6-1978 issued by the Chief Justice were ultra vires of sections 368 and 369 of the Code, THE learned Single Judge was of the opinion that the matter was of wide importance and he therefore referred the question for decision to a larger Bench. Chapter XXXIX of the Code of Criminal Procedure (II of 1974) provides for appeals. Section 382 provides that no appeal shall lie from any judgement or order of a criminal court unless provided by the Code or any other law. Section 373 provides for appeals against certain orders to the Court of Sessions. Section 374 provides for appeal to the Supreme Court against conviction on a trial held by the High Court in exercise of its original Criminal jurisdiction. Section 377 provides that no appeal shall he in cases where the accused pleads guilty. Section 376 provides that no appeal shall lie in petty cases. Section 377 provides for appeal by the State Government against sentence on the ground of its inadequacy. Such appeals are required to be filed before the High Court. Section 378 provides for appeals in cases of acquittal. Sub-section (1) provides that the State Government may in any case direct the public prosecutor to file appeal to the High Court from an original or appellate order or acquittal passed by any court other than the High court or an order of acquittal passed by the Court of Sessions in revision. This is subject to sub-sections (3) and (5). Sub-section (2) provides that if an order of acquittal is passed in a case in whicli the offence may have been investigated by the Delhi Special Police Establishment or by any other agency under any Central Act, other than the Code, the Central Government may also direct the Public Prosecutor to present appeal to the High Court from the order of acquittal. Sub-section (3) provides that no appeal either under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court. Sub-section (4) provides for filing of appeal by the complainant after obtaining special leave to appeal from the High Court against an order of acquittal where the order of acquittal may have been passed in a case instituted upon complaint. Sub-section (5) prescribes period of six months from filing appeal by a complainant against the order of acquittal. Section 382 lays down that every appeal shall be made in the form of petition in writing and presented by the appellant or his pleader and every such petition shall be accompanied by a copy of the judgment or order appealed against. Section 383 provides for falling appeal when the appellant is in jail. Section 384 confers power on the: appellate court to dismiss an appeal summarily after hearing the appellant. Section 385 prescribes procedure for hearing of appeals which are not dismissed summarily. Section 38b confers power on the appellate court to dismiss appeals filed under section 377 or 378 if there is no sufficient ground for interfering with the judgment or order under appeal. These are the provisions which regulate riling of appeal and its hearing. Chapter XXIX does not provide for hearing of appeal filed under Section 378 by a Single Judge or by a Bench of two Judges. However, section 366 provides that in a case where the Court passes an order of death the proceedings shall be submitted to the High Court and the sentence will not be executed unless it is confirmed by the High Court. Section 368 lays down that after the proceedings are submitted under section 366 the High Court may confirm the sentence or pass any sentence warranted by law or it may annul the conviction and paas any other sentence or it may acquit the accused. Section 369 lays down a mandatory provision that in every case submitted under section 366 for the confirmation of sentence or passing of any conviction and sentence shall be heard by at least two Judges when the High Court consists of two or more judges. Thus, 'section 369 is the only provision in the Code which provides ;for the hearing of the reference made under section 366 by a Bench of at least two Judges. Sections 368 and 369 do not relate to hearing and disposal of an appeal under section 378. These provisions have no bearing on the question whether an appeal against the order of acquittal should be heard and disposed of by a Judge sitting singly or by a Bench of two Judges.
(3.) CONSTITUTION of Benches and allocation of cases for hearing to a single Judge or a Bench of two Judges is regulated by the Rules framed by the High Court under Article 225 of the CONSTITUTION of India. This Court has also framed rules known as Allahabad High Court Rules, 1952. Chapter V of the Rules deals with jurisdiction of Judges sitting alone or in Division Bench. Rule 1 as contained in Chapter V provides that Judges shall sit alone or in such Division Courts as may be constituted from time to time and may do such work as may be allotted by the Chief Justice or in accordance with his directions. Rule 2 prescribes matters which shall be heard and disposed of by a Judge sitting alone. These include civil as well as matters arising out of Criminal law. Rule 2 (vii) which relates to criminal appeals and applications is as under : " 2. Except as provided by these rules or any other law, the following cases shall be heard and disposed of by a Judge sitting alone, namely- xx xx (vii) a Criminal Appeal, application or reflerence except- (a) an appeal or reference in a case in which a sentence of death or imprisonment for life has been passed. (b) an appeal under section 378 of the Code of Criminal Procedure, 1973, from an order of acquittal. (c)............ (d)............ (e)............ (f)............ Provided that- (a) The Chief Justice may direct that any case or class of cases which may be heard by a Judge sitting alone shall be heard by a Bench of two or more Judges or that any case or class or classes which may be heard by a Bench of two or more Judges by a Judge sitting alone. " Under the aforesaid provision a criminal appeal, application or reference shall be disposed of by a Judge sitting alone except an appeal or reference in which sentence of death or imprisonment for life has been passes as well as an appeal under section 378 of the Code from an order of acquittal. The rules provide that a Single Judge has no jurisdiction to hear or dispose of an appeal against the sentence of death or imprisonment for life. The Rules further provide that an appeal against order of acquittal under section 378 of the Code is to be heard and disposed of by a Bench of two Judges. Proviso (a) to the rule confers power on the Chief Justice to direct that any case or class of cases which may be heard by a Single Judge sitting alone may be heard by a Bench of two Judges and similarly where a case is required to be heard by a Bench of two Judges, it may be heard by a Judge silting alone In pursuance of proviso (a) to the rule, the Chief Justice passed an order on 29-6-1978 which reads as follows :- " In exercise of powers conferred under the proviso (a) to rule 2, Chapter V, rules of the Court, 1952, Vol. 1, it is hereby ordered that henceforth all applications for leave or special leave to appeal against an order of acquittal as provided in sections 378 (3) and 378 (4) shall be heard and disposed of by a Judge sitting alone. The provisions contained in rule 8, Chapter V, Rules of the Court 1952, Vol. I shall with necessary modifications and adaptations be read, interpreted and applied consistent with this order. This order shall be applicable to Lucknow Bench also " It is in pursuance of the above order that applications for leave under section 318(3) or special leave to appeal under section 37s (4) against order of acquittal are being heard and disposed of by a Judge sitting singly. As noted earlier, under the Rules an appeal or reference where a sentence of death of imprisonment for life has been passed cannot be heard by a Judge sitting alone, instead it is to be heard by a Bench of two Judges. Similarly, an appeal under section 378 from an order of acquittal is also to be heard and disposed of by a Bench of two Judges but the order of the Chief Justice issued under proviso (a) provides for hearing of the applications for leave or special leave to appeal by a Judge sitting alone. The Chief Justice appears to have issued the order dated 29 6 -1978 treating the application for leave and special leave as a separate proceeding from the appeal itself. Under the orders of the Chief Justice as well as the practice which is being followed in this Court an appeal against acquictal including an application for leave to appeal as contemplated by section 378 (3) or 378 (4) is listed before a Single Judge. If and when the Single Judge grants leave and entertains the appeal, it is placed before Division Bench for hearing in accordance to rule 2 (vii) (b). But if the leave is refused, the appeal stands dismissed. The order of the Chief Justice proceeds on the assumption that disposal of leave or special leave application as contemplated by section 378 (3) and 378 (4) is a separate proceeding from appeal against an order of acquittal.;