IMPORTANT POINT
Order refusing leave to file appeal against acquittal where offence is not trivial without reasons would not be sustainable.

JUDGMENT

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."

2. 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 ).

3. 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.

4. Mr. J.K. Das, learned counsel appearing for the appellant-State submitted that the High Court was required 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.

5. 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".

6. 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 co 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