Not Mandatory To Summon Lower Court Record Before Deciding State's Plea For Grant Of Leave U/S 378(3) CrPC: Allahabad High Court

The Allahabad High Court has held that it is not mandatory for the High Court to summon the lower court record in every case before deciding the State Government's application for grant of leave to appeal against an acquittal order as provided under Section 378(3) Cr.P.C. 

For context, 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 the entertainment of such appeal

The bench of Justice Ashwani Kumar Mishra and Justice Shiv Shanker Prasad observed that it is for the High Court to decide on the basis of facts and circumstances of each case whether the application for grant of leave requires the perusal of the lower court records or not.

The Court was of the view that though the right of the appellate court to summon the lower court record in an appropriate matter always subsists, it is not necessary for the HC to call for the lower court records for consideration of an application under Section 378(3) Cr.P.C., in every case or as a matter of routine.

Significantly, the Court referred to the Apex Court's ruling in the case of State of Maharastra Vs. Sujay Mangesh Poyarekar (2008) 9 SCC 475, where it was observed the High Court while exercising the power to grant or refuse leave must apply its mind and consider where a prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside.

The Court also took into account sub-section 2 of Section 384 Cr.P.C. which provides that before dismissing an appeal, summarily, the Court may call for the record of the case. The Court noted that non-summoning of the lower court records in an appeal against conviction is not fatal and that the use of the expression 'may' in sub-section (2) clearly suggests that the power to summon the record is only an enabling provision and is not to be read as shall.

Against this backdrop, the Court stressed that every appeal is not required to be admitted inasmuch as leave must not necessarily be granted in every matter and the exercise of power in that regard is dependent upon a prima facie assessment of the material placed before the Court so as to ascertain whether the appeal raises arguable points or not.

Consequently, the Court came to the conclusion that it is not mandatory for the High Court to summon the lower court record in every case before deciding the application for grant of leave under Section 378(3) Cr.P.C.

However, the Court did add that the right of the appellate court to summon the lower court record in an appropriate matter always subsists and It is for the High Court to decide on the basis of facts and circumstances of each case whether the application for grant of leave requires the perusal of the lower court records or not

Case title - State of U.P. v. Vakil S/O Babu Khan [GOVERNMENT APPEAL No. - 591 of 2022]

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