The main legal point established is that a composite application can be made by the State for leave to appeal against an order of acquittal, without the necessity of filing a separate petition for leave before preferring an appeal.

RADHAKRISHNAN, J.

All these petitions are filed under Section 378(3) of the Code of Criminal Procedure by the State of Kerala for leave of this Court to file criminal appeals against the order of acquittal. The State filed leave petitions since this Court passed order on 5-1-2000 in Criminal Appeal 919 of 1999 ordering that an appeal preferred by the State can be treated as an appeal in terms of Section 378(3), Cr. P.C. only if leave is granted by this Court. We may extract the order of this Court for easy reference :

"We find that in terms of Section 378(3), Cr. P.C. leave has to be obtained of the Court where an appeal in terms of sub-section (1) or (2) is filed against an order of acquittal. Obviously a separate petition has to be filed seeking leave of the High Court and until that leave is granted the appeal preferred cannot be treated to be an appeal in terms of Section 378(3), Cr. P.C. Learned counsel for the State submits that a separate petition shall be filed in this regard. Call next week.

2. If an application for grant of leave is filed by the State the same shall be registered as Crl. M.C."

Learned Public Prosecutor submitted that State need not file a separate petition for leave to appeal under sub-section (3) of Section 378, Cr. P.C. but need file only a composite application along with the appeal. Public Prosecutor submitted that there is no necessity to obtain leave of the High Court and then prefer an appeal against acquittal. Reliance was placed on the decision of the Apex Court in State of Rajasthan v. Ramdeen, 1977 SCC (Cri) 393 : (1977 Cri LJ 997).

We perused the judgment of the Apex Court. We are of the view the order passed by this Court referred to hereinbefore is not the correct legal position in view of the decision of the Apex Court. We notice the decision of the Apex Court was not brought before the knowledge of this Court when this Court passed the order mentioned above. This issue directly came up for consideration before the Apex Court in Ramdeen's case (supra). Before the Apex Court it was pointed out that the practice followed by the Rajasthan High Court was to file a separate memo of appeal in all matters relating to the grant of leave to appeal under Section 378, Cr. P.C. The Apex Court observed it is difficult to appreciate the reference to practice, by the High Court, so far as appeals by State are concerned when the new Code of Criminal Procedure, for the first time, provided for obtaining leave to appeal by the State only from April 1, 1974. The Court noticed that there was no rules laid down by the High Court in the matter of application for leave to appeal by the State. According to the Apex Court, it is therefore not possible to decide the matter relying upon the so-called practice soon after the provision has been introduced. Referring to Section 378(1) and (3) the Apex Court held as follows at Page 999; of Cri LJ :

"The matter will, therefore, have to be decided in terms of Section 378(1) and (3) of the Code of Criminal Procedure, 1973. Section 378(1), so far as it is material for our purpose, provides that the State Government may direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal. Sub-section (3) of that section provides that such an appeal shall not be entertained except with the leave of the High Court. Under the law it will be perfectly in order if a composite application is made giving the necessary facts and circumstances of the case along with the grounds which may be urged in the appeal with a prayer for leave to entertain the appeal. It is not necessary, as a matter of law, that an application for leave to entertain the appeal should be lodged first and only after grant of leave by the High Court an appeal may be preferred against the order of acquittal. If such a procedure is adopted, as above, it is likely, as it has happened in this case, the appeal may be time-barred if the High Court takes mo