The discretion of the appellate court to summon the lower court record before summarily dismissing the appeal and the purpose of grant of leave to embark upon a prima facie assessment of the appeal.

JUDGMENT :

1. A short but interesting question arises in this appeal as to whether this Court, while exercising its power to grant leave to the State to institute appeal under sub-section 3 of Section 378 Cr.P.C. is required to summon the lower court record, first, before proceeding to consider the prayer made for grant of leave?

2. Section 378 Cr.P.C. provides for filing of appeal in case of acquittal by the State. Sub-section 3 of Section 378 Cr.P.C. contemplates for grant of leave for entertainment of such appeal. Sub-section 3 of Section 378 Cr.P.C. reads as under:-

"3. No appeal under Sub-Section (1) or Sub-Section (2) shall be entertained except with the leave of the High Court."

3. It is urged by Sri S. A. Murtza, learned A.G.A. for the State that the State cannot be treated differently in the matter of filing of appeal vis-avis the victim and since the requirement of seeking leave under Section 372 Cr.P.C. stands dispensed with by virtue of proviso added to Section 372 Cr.P.C., conferring right upon a victim to prefer appeal against the order of acquittal or convicting the accused for a lesser offence or imposing inadequate compensation, as such the State being repository of the interest of society at large must be treated at par with the victim. It is also submitted that though the Code of Criminal Procedure provides for summary dismissal of appeal yet sub-section 2 of Section 384 Cr.P.C. nevertheless provides that before dismissing an appeal, summarily, the Court may call for record of the case. Sub-section 2 of Section 384 Cr.P.C. relied upon by learned A.G.A. is extracted hereinafter:-

"(2) Before dismissing an appeal under this section, the Court may call for the record of the case."

4. It is urged that appeal is a creature of statute and Chapter XXIX of the Code provides for the procedure to be followed for its adjudication, therefore, it would be necessary for this Court to summon the lower court record first before examining the question of grant of leave. It is also urged that the refusal to grant leave results in affirmance of the order impugned in the appeal as such the decision affects the victim as his right of appeal would be adversely affected. Attention of the Court has been invited to the judgment of the Supreme Court in State of Maharastra Vs. Sujay Mangesh Poyarekar (2008) 9 SCC 475, wherein the Supreme Court observed as under in paragraph Nos. 19 to 21:-

"19. So far as an application for leave to appeal by the State is concerned, the High Court rejected it without considering the evidence of the prosecution. In the impugned order, the High Court noted that it had heard the learned Assistant Public Prosecutor. It went on to state that none of the injuries sustained by the victim was ‘fatal’. According to the High Court, the cause behind the assault was that the complainant-advocate was teasing the wife of the accused, who was also working in the Court.

20. It then proceeded to observe;

"The trial Court has appreciated the evidence properly and has also taken into consideration the number of complaints filed against the said advocate complainant including the apology tendered by the complainant to the President, Bar Association, Dahanu and the action taken by the Bar Council. The trial Court found inherent improbabilities in the case of the complainant and therefore acquitted the accused. The judgment of the trial Court cannot be said to be perverse. No interference is called for. Application rejected".

21. Now, Section 378 of the Code provides for filing of appeal by the State in case of acquittal. Sub-section (3) declares that no appeal "shall be entertained except with the leave of the High Court". It is, therefore, necessary for the State where it is aggrieved by an order of acquittal recorded by a Court of Session to file an application for leave to appeal as required by sub-section (3) of Section 378 of the Code. It is also true that an appeal can be registered and heard on merits by the High Cou