Holding

An application for leave to appeal under s.378(3) CrPC is an integral part of the appeal and must be heard by a bench of two Judges; a Single Judge lacks jurisdiction.

Summary

The State of Madhya Pradesh sought to appeal an acquittal under section 378(1) of the Criminal Procedure Code, 1973, and filed an application for leave under section 378(3). By prevailing practice in the Madhya Pradesh High Court, the leave application was listed before a Single Judge under Rule 1(q) of the High Court Rules, which refused the leave. The State contended that such an application is part of the appeal and must be heard by a bench of two Judges as required by Rule 1(q)(ii). The Supreme Court held that the leave application is an integral component of the appeal and therefore must be dealt with by a bench of two Judges; a Single Judge lacks jurisdiction. Consequently, the High Court’s order dismissing the leave application was set aside and the appeal was allowed. The Court also clarified the statutory scheme of section 378, rejecting the view that the leave application is merely a procedural formality and overruling the earlier Madhya Pradesh High Court decision in State v. Narendrasinh.

Issues considered

Whether an application for leave to appeal under s.378(3) CrPC must be heard by a Single Judge or by a bench of two Judges under the Madhya Pradesh High Court Rules.
Whether the Single Judge had jurisdiction to entertain the leave application.
Interpretation of s.378(3) CrPC and its procedural relationship with the appeal under s.378(1).

Legislation cited

Code of Criminal Procedure, 1973s. 378(1), s. 378(2), s. 378(3), s. 378(4), s. 378(5), s. 384, s. 385, s. 422
Constitution of Indias. 134(1)(c)
General Clauses Act, 1897s. 8(2)
Limitation Act, 1963s. Article 114
Madhya Pradesh High Court Ruless. 1(q), s. 1(q)(ii), s. 4

Subjects

Criminal ProcedureAppeal against acquittalLeave of High CourtJurisdiction of Single JudgeMadhya Pradesh High Court RulesStatutory interpretationSupreme Court

Judgment

81
A
STATE OF MADHYA PRADESH

v.
DEWADAS & ORS.
B
January 29, 1982

(A.D. KOSHAL, A.P. SEN AND V. BALAK.RISHNA ERADI, JJ.)

Code of Criminal Procedure, 1973 S. 378 (3)-State Government's applica-
c
tion for leave to appeal-Hearing and disposal by Single Judge under r.1 (q),
Chapter I, Parl 1 of M.P. High Court Rules-WMther legal?

The Code of Criminal Procedure, 1973, provi.des inttr·a/ia, by sub-s. (3)
of s. 3i8 that no appeal against an order of acquittal passed by a lower court
shall be entertained under sub-s. (1) or ·sub-s. (2) except with the leave of the D
High Court.

A practice was prevalent in the Madhya Pradesh High Court, requiring
the State Government or the Central Government, desirous of preferring an.
appeal under sub-s. (I) or sub-s. (2) of s. 378 of the Code, to make an application
for leave under sub-s. (3) thereof, and it was registered as a Miscellaneous Crimi-
, nal Case and treated as a petition and as such placed before a Single Judge for E
hearing as per r. 1 (q), Chapter I, Part I, of the Madhya Pradesh High Court
Rules. It was only when the Single Judge granted leave to appeal under sub-s.
(3), that the petition for leave was registered as a Criminal Appeal and placed
before a Division Bench for admission under sub-s. (!) of s. 384.

The State Government of Madhya Pradesh having decided to prefer an
appeal under sub-s. (I) of s. 378 filed an application for leave to appeal under F
sub-s. (3) setting out therein the grounds of appeal and the Single Judge who
beard it refused to grant the leave. The State Government made an application
for grant of certificate under Ar\icle 134 (l) (c) of the Constitution. The applica-
tion was heard by a Division Bench. The contention was that there was inherent
lack of jurisdiction on the part of the Single Judge to hear and decide an app,lica·
tion for leave under sub-s. (3) of s. 378 of the Code, inasmuch as under r. 1 (q)
(ii) of the Madhya Pradesh High Court Rules, Chapter I, Part I, the matter had G
to be dealt with by a Bench of two Judges.

The High Court, following its earlier decision in State of.Madhya Pradesh
v. Narendraslngh, (1974) MPLJ (N) 102, rejected the contention, holding that the
State bad to obtain 'leave' of the High Court under sub-s. (3) of s. 378, before an
appeal against acquittal was preferred under sub-s. (1) thereof and therefore the H
learned Single Judge had jurisdiction to deal with the application for leave under
sub... (3).
82 strPRl!Mil COURT REPORTS (1982) 3 'S.C.1'.

A ... In appeal to this Court the State Government contended that the making ·
of an app1ication for leave under sub-s. (3) of s. 378 is tantamount to filing an
appeal under sub-s. (1) thereof, that the High Court could grant leave and enter-
tain the appeal at one and the same time inasmuch as an application under sub-s.
(3) would be transmuted into an appeal under sub-s. (1) when leave is granted
under sub-s. (3) and, therefore, the application for leave under sub-s. (3) must
B have been laid before a Bench of two Judges under r. I (q) (ii) of the High Court
Rules.

Allowing the appeal,
)
HELD : I. An application for 'leave' to appeal under oub-s. (3) of s. 378
without which no appeal under sub-s. (J) or sub-s. (2) thereof can be entei1ained,
c being an integral part of the appeal, must be laid before a Bench of two Judges
of the High Court under r ..1 (q) (ii), Chapter I, Part I of the Madhya Pradesh
Higb Court Rules (as it stood before the amendment) and could not be heard and
disposed of by a Single Judge of the High Court under r. I (q) of the Rules, as it
stood prior to its amendment. [92 E-F; 83 DJ

2. Sub-s. (3) of s. 378 was introduced by Parliament to create a statutory
D restriction against entertainment of an appeal filed by the State CJ:overnment or
the Central Government under sub-s. (I) or sub-s. (2) thereof from an order of
acquittal passed in a case instituted otherwise than upon a complaint. There is
a difference in the procedure regulating entertainment of State appeals under
sub-s. (!) or sub-s. (2) of s. 378 and appeals against acquittals filed by a complai-
nant under suo-s. (4) of s. 378. On a compamon of the language employed in
sub-s. (3) and sub·s. (4) of s. 378, it is clear that in the case of an appeal by the
E State Government or the Central Government under sub:.s. (l) or sub-s. (2), the
Code does not contemplate the making of an application for leave under sub-s.
(3) while making of an application under sub-s. (4) is a condition precedent for
the grant of special leave to a complainant under sub-s. (4). The difference in
language used in sub-s. (3) and sub-s. (4) of s. 378 manifests the legislative intent
to preserve a distinction between the two Classes of appeals by prescribing two
different procedures in the matter of entertainment of appeals against acquittals.
·F While a period of limitation has been prescribed in sub·s. (5) of s. 378 for an
application of the complainant under sub-s. (4), there is no period of Jirµitation
prescribe-d. for an application for grant of leave to appeal under sub-s. (3), obvio-
usly because the Code does not contemplate the making of an application for
leave under sub-s. (3) of s. 378. It, therefore, fo1lows that the State Government
or the Central Government may, while preferring an appeal under sub-s. (I) or
sub-s. (2) of s. 378 incorporate a prayer in the memorandum of appeal for grant
G
of leave under sub-s. (3) thereof, or make a separate application for grant of
leave under sub-s. (3) of s. 378, but the making of such an application is not a
condition precedent for a State appeal. [90 F-H; 91 A-C; 88 G-H; 91 C-D]

State of Madhya Pradesh v. Narendra Singh, (1974] MPLJ (N) 102 over-
H ruled.

State of Rajasthan v. Ramdeen & Ors. (1977] 3 S.C.R. 139 relied oo.
M.P. STATB v. DBWADAS (Sen. J.) 83
C!l!MINAL APPELLATE JURISDICTION : Criminal Appeal No. 278
A
of 1975.

Appeal by special leave from the judgment and order dated,
the 16th October, 1974 of the Madhya Pradesh High Court in Misc.
i Criminal Case No. 786 of 1974. B
Gopa/ Subramaniam for the Appellant.

P.D .. Sharma, for the Respondent.

The Judgment of the Court was delivered by : c
SEN, J. The short question involved in this appeal by special
leave from the judgment and order of the Madhya J>radesh High
Court is, whether ari application for 'leave' to appeal under sub-s.
(3) of s. 378 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as 'the Code'), without which no 'appeal under sub-s. (I) 0
or .sub-s. (2) thereof can be entertained, being an integral par! of
the appeal, must be laid before a Bench of two Judges of the High
Court, under r. 1 (q) (ii), Chap. I, Part I, of the Madhya Pradesh
High Court Rules, or can be heard and disposed of by a Single
Judge of the High Court under r. l (q) of the Rules.
E
The material facts giving rise to the appeal are these. The
State Government of Madhya Pradesh having decided to prefer an
appeal under sub-s. (I) of s. 378 of the Code, filed an application
for 'leave' to appeal under sub·s. (3) thereof, setting out therein the
grounds of appeal. According to the practice prevalent in the F
Madhya Pradesh High Court, the application was listed before a
Single Judge, as per rule I (q), Chapter I, P~rt I of. the Madhya
Pradesh High Court Rules. 'The learned Single Judge refused to
grant leave to appeal under sub·s. (3) of s. 378 on the ground that
the judgment of acquittal was based on appreciation of evidence and
was not perverse or unreasonable. The State Government applied G
for grant of a certificate under Art. 134 (1) (cl of the Constitution.
The application for grant of a certificate was placed before and
heard by a Division Bench. The contention on behalf of the State
Government was that an application for grant of leave under sub-s,
(3) of s. 378 of the Code must be treated as a part of the appeal
H
preferred by the State Government under sub·s. (1) thereof, and
•

sbPRl!Mil coukt llllro!!.Ts (i982] 3 S.C.ll.
A
therefore, should have been placed before a Bench of two Judges
and consequently the order of the learned Single Judge rejecting the
application for grant of leave under sub·s. (3) of s. 378 of the Code.
was a nullity. The Division Bench, following the decision of another
Division Bench in the State of Madhya Pradesh v. Narendrasingh,( 1)
8 rejected the contention of the State that the learned Single Judge
had no jurisdiction to entertain or decide the application for leave
to appeal under sub-s. (3) of s. 378 of the Code. It however,
noticed the incongruity of the requirement that an appeal under
sub·s. (I) or sub-s. (2) of s. 378 should be placed before a Bench )
of two Judges under r. I (q) (ii) of the Madhya Pradesh High
c Court Rules and the hearing and disposal of an application for
leave under sub-s. (3) thereof should be by a Single Judge, and
observed :

"The matter is being examined by the rule making
Committee. It is rather anomalous that under rule 1 (q)
D item (ii) of Chapter I of the Madhya Pradesh High Court
Rules, an appeal against acquittal filed by the State Govern-
ment has to be heard by a Division Bench, still the applica-
tion for leave under section 378 (3) of the Code should be
laid before a Single Judge."
E
As the case involved an important question relating to pro·
· cedure and practice, and as the correctness of the decision of the
High Court in Narendrasingh' s case was open to question, special
leave was granted by this Court.

F It appears that a practice was prevalent in the Madhya Pradesh
High Court, requiring the State Government or the Central
Government, desirous of preferring an appeal under sub·s. (1) or
sub-s·. (2) of s. 378 of the Code, to make an application for leave
under sub-s. (3) thereof, and it was registered as a Miscellaneous
Criminal Case and treated as a petition and as such placed before
G a Single Judge for hearing as per r. 1 (q), Chap. I, Part I, of the
Madhya Pradesh High Court Rules. It was only when the Single
Judge grante<l leave to app-.al under sub-s. (3), that the petition for
leave was registered as a Criminal Appeal and placed before a
Division Bench for admission under sub-s. (I) of s. 384 of the Code.
H
(I) (1974) MPU (N) 102.
•

M.R. STATE v. DEVADAS (Sen, J.) 85
A
The contention that there was inherent lack of jurisdiction on
the part of a Single Judge to hear and decide an application for
leave under sub-s. (3) of s. 378 of the Code and, therefore, the pro-
ceedings were null and void is based on the provisions contained in
r. J (ql(ii), Chap. I, Part I, of the Madhya Pradesh High Court Rules,
which read as follows : B
"I. The following matters shall ordinarily be heard
and disposed of by a Judge sitting alone:

xx xx xx xx
c
(q) An appeal, petition or reference under the Code
of Criminal Procedure, other than ;

xx xx xx xx
0
(ii) an appeal by the Provincial Government nnder
section 417 of the Code from an order of acquittal."

The heading of Chap. I in which the rule fin ls pla<:e is "Jurisdiction
of a Single Judge and of Benches of the Court." It is urged that
any breach of the rule would render the judgment a nullity. Rule 4 E
of the said Rules provides that 'Save as provided by law or by rules
or by special orders of the Chief Justice, all matt~rs shall be heard
and disposed of by a Bench of two Judges'. By reason of s. 8 (2)
of the General Clauses Act, 1897, reference to an appeal against
acquittal under s. 417 (I) of the Code of Criminal Procedure, 1898
(hereinafter referred to as 'the old Code') by the Provincial Gover-
ment has to be read as an appeal against acquittal by the State
Government under sub-s. (I) of s. 378.

It is contended on behalf of the State Government that the
making of an application for leave under sub-s. (3) of s. 378 of the G
Code is tantamount to filing an appeal under sub·s. (I) thereof, and
the High Court can grant leave and entertain the appeal at one
and the same time, inasmuch as such an application by the State
Government under sub-s. (3) is transn)uted into an appeal against
acquittal under sub-s. (1) of s. 378, when leave is granted under H
sub-s. (3) and, therefore, the application for leave under subs. (3)
)111d to b~ heard by a Beuc4 gf two J ud9es; Jt is urged that a com-
86 SUPREME COURT REPORTS [1982) 3 S.C.R.

A parison of the language employed in sub-ss. (3) and (4) of s. 378
would make it clear that the Parliament never intended, in the case
of an acquittal, that the State Government should first make an
application for leave under sub-(3) of s. 378, and then, if leave
is granted, present an appeal under sub-s. (I) of s. 378. It is
further urged that the jurisdiction of a Single' Judge is limited by
B the words 'other than' in r. 1. (q) of the Madhya Pradesh High
Court Rules, and an appeal preferred by the State Government
under sub-s. (I) of s. 378 of the Code could be heard and decided
only by a Bench of two Judges as required by r. I (q) (ii) of the
Rules.
c The submission advanced on behalf of the respondents, on
the other hand, is that the introduction of the new provision in
suh-s. (3) of s. 378 and the use. of the words 'leave of the High
Court' and the word 'entertained' clearly indicates the legislative
intent to prescribe for two different stages : (I) the making of an
D application for leave under sub-s. (3) of s. 378, and (2) then, if leave
is granted, presenting the petition of appeal under s. 382 of the
Code. It is urged that the State Government must obtain- 'leave'
of the High Court under sub-s. (3) of s. 378, before an appeal
against acquittal is preferred under sub-s: (I) thereof, as in the case
of a private_ complainant under sub-s. (4) of s. 378, and the
E difference in language in sub-s. (3) and sub·s. (4) is of little
con sequence.

Jn Narendrasingh' s case, the State Government being desirous
of preferring an appeal against acquittal under sub-s. (I) of s. 378,
made an application for grant of leave under sub-s. (3) and the
F proposed memorandum of appeal was annexed thereto. An applica-
tion was filed on behalf of the State Government stating that the
prayer for grant of leave under sub-s. (3) be treated as a part of the
appeal itself and not separately. It was further prayed that the
case, which had originally been registered as a Miscellaneous
G Criminal Case relating to the grant of leave, should be registered as
a 'Criminal Appeal'. The matter was, therefore, placed before a
Division Bench. The learned Judges of the High Court referred to
the report of the Law Commission(') and observed that the
legislative object in re-enacting the provisions of s. · 417 of the old
H Code with the addition of the new provision contained in sub-s. (3)

(1) 48th Report, Vol. !I, Chapters 30-57, paras 28-34, at pp. 810-81.l,
M.P. STATE v. DEWADAS (Sen, J.) 87

of s. 378 of the Code, was that there had to ha a further scrutiny A
of a State appeal by the Court even prior to the stage of admission,
requiring the Court to eonsider at the very outset whether the
appeal should be entertained or not. It wa~ only after the appeal was
entertained with the 'le ave' of the Court that it had to be heard for
admission and it may be dismissed summarily without J!Otice to the
other side. It was further observed that the legislature brought about B
the change while accepting the recommendation of the Law
Commission to retain the power of the High Court to dismiss State
appeals summa. ily without notice to the respondents.

In substance, the decision in Narendrasingh's case, as expressed
in the words of the learned Judges, may be thus stated : c

"(A)t the very outset on an appeal against acquittal
being lodged by the State, the High Court is to consider
whether leave should be granted or not. I.t is only when
leave is granted under section 378(3) that the appeal is D
entertained. On the appeal being so entertained as a con-
sequence of the grant of leave, it is to be listed for admis-
sion and in case it is not dismissed summarily under sec-
tion 384 (I) notice is to be issued to the accused under
section 385 (I) (iv).
E
xx xx xx xx

The appeal being entertained only on the grant of leave
under sec. 378 (3), the matter relating to grant of leave has
to be ordinarily heard and disposed of by a Single Bench of F
this Court acco~ding to Rules. The appeal itself bein-g
entertained only when leave is granted, there is, in fact,
no appeal as such till the leave is granted, even though it
may have been lodged while praying for leave. The matter
has, therefore, to be initially registered only as a 'Mis-
cellaneous Criminal Case' and it is only when the leave is. G
. granted resulting in the appeal being entertained that it can
be registered as a criminal appeal. Thereafter it has io be
listed before the Division Belich for admission."

In making these observations the learned Judges appear to
H
:/
have been ~wayed by a practice which was prevalent in their Co11rt.
88 SUPRBMB COURT REPORTS (1982) 3 s.c.n.

A The jurisdiction of the Court in these matters is, however, statutory
and the Court is not entitled to go outside the provisions of a
statute but must interpret them as they are.

The answer to the question involved must tum on a proper
construction of sub-s. (3) of s. 378 of the Code. Section 378 of the
B Code corresponds to s. 417 of the old Code, as amended in 1955.
Sub-s. (I) of s. 378 of the Code is in terms the same as sub-s. (I) of
s. 417 of the old Code and it provides that 'Save as otherwise pro-
vided in sub-s. (2) and subject to the provisions of sub-ss. (3) and

C!
(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 a court other than a High
J
Court'. Sub-s. (2) of s. 378 corresponds to sub-s. (2) of s. 417
and confers the right of appeal on the Central Government in
certain class of cases subject to the provisions of sub-s. (3) from
such an order of acquittal. Sub-s. (3) of s. 378 is a new provision
D inserted to implement the recommendation of the Law Commission
made in its 48th Report on Appeals against Acquittals, and pro· •
vides that:

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

Sub-s. (4) and sub-s. (5) deal with an. order of acquittal passed in
any case instituted upon a complaint. Sub-s. (4) provides that if an
order of acquittal is passed in such a case, and the High Court on
an application made to it by the complainant in that behalf, grants
F 'special leave' to appeal from the order of acquittal, the complainant
may present such an appeal to the High Court. Sub-s. (5) pro-
vides for two distinct periods of limitation. No application under
sub-s. (4) for grant of special leave to appeal from an order of
acquittal in a complaint case shall be entertained by the High Court
at the expiry of six months where the complainant is a public ser-
·G vant and sixty days in other cases computed from the date of the
order Qf acquittal. There is no period of limitation prescribed
for presenting an application for jlrant of leave to appeal under
sub-s. (3) of s. 378 from an order of acquittal passed in a case
instituted otherwise than upon a complaint, obviously because the
H
Code does not contemplate the making of an application for leave
µoder sub-s. (3) of s. 378 of the Code: Thus, the period of limita-
M.P. STATB v. DEWADAS (Sen, J.) 89
A
tion in such a case, is for an appeal from an order of acquittal
under sub-s. (I) or sub-s. (2) of s. 378 of the Code, as prescribed by
Art. 114 of the Limitation Act, 1963. The period of limitation
prescribed therefor is sixty days from the date of the order appealed
from. ·
, '

Under the scheme of the Code, the State Government or
the Central Government may prefer an appeal under sub·s. (I)
or sub-s. (2) of s. 378 ·of the Code, but such appeal shall
not be entertained unless \he High Court grants 'leave' under
sub-s. (3) thereof.. The words 'No appeal under sub·s. (1) or sub-s. c
(2) shall be entertained' used in sub-s. (3) of s. 378 create a
qualified bar to the entertainment of an appeal filed by the State
Government or the Central Government under sub-s. (I) or sub-s. (2)
from an order of acquittal passed in a case instituted otherwise than
upon a complaint. The Code, by enacting sub-s. (3) of s. 378, there-
fore, brought about a change in that there is no longer an unres- 0
tricted right of appeal against the orders of acquittal passed in such
cases. The making of an application for grant of leave to appeal by
the State Government or the-Central Government under sub-s. (3)
of s. 378 is, however, not a condition precedent to the entertainment
of such an appeal. The prayer for grant of leave under sub·s. (3)
may, as it should, be contained in the petition of appeal filed under
s. 382 of the Code.
'
There is no warrant for the view expressed by the High Court
in Narendrasingh's case that the legislative object in re-enacting the F
provisions of s. 417 of the old Code with the addition of the new
provision contained in sub-s. (3) of s. 378 of the Code, was that there
was to be a preliminary scrutiny of a State appeal by the Court even
prior to the stage of admission, requiring the Court to consider at
the very outset whether the appeal should be entertained or not, and
that it was only after the appeal was entertained with the leave of G
the Court that it was to be heard for admission under sub-s. (I) of
s. 384 read with sub·s. (I) of s. 385 of the Code. The High Court
appears to rest its decision more on the Report of the Law Commi-
ssion than the actual language of sub-s. (3) of s. 378 of the Code, in
coming to the conclusion that sub-s. (3) contemplated two stages. H
Sub·s. (3) of s. 378 is not susceptible of any such construction. Th~
Law Commission in its 48th RepQft h~d ol;l~rved :
' • • • - I '
90 SUPREME COURT 'REPORTS [1982} 3 S.C.R

A "While one may grant that cases of unmerited acquit-
tals do adse in practice, there must be some limit as to the
nature of cases in which the right should be available."

And, keeping in view the general rule in most common law countries
not to allow an unrestricted right of appeal against acquittals, it
B recommended :

"With these considerations in view, we recommend that
appeals against acquittals under s. 417, eveu at the instance
of the Central Government or the State Government,
should be allowed only if the High Court grants special
c leave.

It may be pointed out that even now the High Court
can summarily dismiss an appeal against an acquittal, or :I
for that matter, any criminal appeal. (Se~tion 422, Crimi-
nal P.C.). ·
D
Therefore, the amendment which we are recommending
will not be so radical a departure as may appear at the first
sight. It will place the State and the private complainant
on equal footing. Besides this, we ought to add that under
s. 422 of the Code, it is at present competent to the appel-
E late Court to dismiss the appeal both of the State and of
the complainant against acquittal at the preliminary
hearing."

' The recommendations of the Law Commission were not, however,
fully carried into effect. Sub-s. (3) of s. 378 of the Code was introdu-
F
ced by Parliament to create a statutory restriction against entertain-
ment of an appeal filed by the State Government or the Central
Government under sub-s. (I) or sub·s. (2) of s. 378 from an order of
acquittal passed in a case instituted otherwise than upon complaint.
At the same time, Parliament re-enacted sub-ss. (3) and (4) of s. 417
G as sub·ss. (4) and (5) of s. 378, which deal with an order of acquittal
passed in any case instituted upon a complaint. The result of this
has been that there is a difference in the procedure regulating enter-
tainment of State appeals against acquittals under sub-s. (1) or suh-s.
(2) of s. 378 and appeals against acquittals filed by a complainant
H under sub-s. (5) of s. 378. On a comparison of the language
employed in sub-s. (3) and sub-s. (4) of s. 378, it is clear that the
Je~islature bas chosen to treat State appea,ls in a manner ~jff~re!!i
.
M.P. STATB ~. DBWADAS (Sen, J.) 91

from appeals by a complainant in the matter of preferring appeals A
against acquittals. In the case of an appeal from an order of acqui-
ttal passed in a case instituted otherwise t&an upon complaint pre-
ferred by the State Government or the Central Government under
sub-s. (I) or sub:s. (2) of s 378, the Code does not contemplate the
making of an application for leave under sub-s. (3) thereof, while the
making of an application under sub-s: (4) of s: 378 is a condition 8
precedent for the grant of 'special leave' to a complainant under
suli-s. (5). The difference in language used in sub.s. (3) and sub-s.
· (4) of s. 378 manifests the legislative intent to preserve a distinction
between the two classes of appeals by prescribing two different pro-
cedures in the matter of entertainment of appeals against acquittals.
It, therefore, follows that the State Government or the Central c
Government may, while preferring an appeal against acquittal under
sub -s. {I) or sub-s. (2) of s. 378, incorporate a prayer in the memo-
randu111 of appeal for grant of leave under sub-s. (3) thereof, or
make a separate application for grant of leave under sub-s. (3) of
s. 378, but the making of such an application is not a condition pre-
cedent for a State appeal. D

In the State of Rajasthan v. Ramdeen & O~.<., (1) this Court
dealt with a case where the Rajasthan High Court granted the State
Government leave to appeal under sub-s. (3) of s. 378 of the Code,
E
but dis111issed the appeal filed thereafter on the ground that it bad
not been filed within ninety days fro111 the judgment appealed from
and was therefore barred by limitation under Art. I 14 of the Limita·
tion Act, 1963. The application for grant ·of leave under sub-s. (3)
contained all the requisites of a memorandum of appeal and had
been filed within ninety days from the date of order of acquittal but F
was not a~companied by a petition of appeal. It was held that an
<ippeal under sub-s. (I} of s. 378 was an integral part of an applica-
tion for leave to appeal under sub-s (3). Accordingly, the order
passed by the High Court dismissing the appeal as barred by limita·
tion was set aside. In dealing with the question, it was observed :
G
"Under the law it will be perfectly in order if a com·
posite application is made giving the necessary facts and
circumstances of the case along with the grounds which
may be urged in the appeal witb. a i>rayer for leave to enter- H
'>(

(I) [1977] 3 S.C.R. 139.
92 SUPREME COURT REPORTS (1982] 3 s.c.R.

tain 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
B the High Court takes more than ninety days for disposal of
the application for leave. The possibility that the High
Court may always in such cases condone the delay on appli-
cation'filed before it does not, in law, s_olve the legal issue.
The right conferred by section 378 (1), Cr. P.C., upon the·

c State to prefer an appeal against acquittal will be jeopardi-
sed if such a procedure is adopted,· for in certain cases it
- .

may so happen that the High Court may refuse to exercise •
its discretion to condone the delay. The right conferred I
under the section cannot be put in peril by an interpreta-
tion of section 378 Cr. P.C., which is likely to affect adver-
sely or even perhaps to destroy that right,"
D
The view expressed by the High Court in Nqrendrasingh's case being
in conflict with the. decision of. this Court in Ramdeen' s case must be
overruled.

It must accordingly be held that the learned Single Judge bad
E no competence to entertain, hear '.lr dispose of the question of grant
ofleave under sub-s. (3) of s. 378, as it had virtually entailed dismis-
sal of the appeal preferred by the State Government UI\der sub-s. (I}
thereof. The matter should have been dealt with by a Bench of two
Judges in terms of r. 1 (q) (ii), Chap. I, Part I, of the Madhya
F Pradesh High Court Rules.
.----r-
,.
The question at issue has now become academic. As already
stated, the High Court while refusing the grant of certificate of
fitness, bad adverted to the fact that the matter was being examined
. by the Rule-Making Committee. It has since amended r. 1 (q) and
G made a distinction between appeals from orders of acquittals under
sub-s. (I) of s: 378 in respect of: (J) offences punishable with sen-
ience of death or imprisonment for life and triable by Court of
Sessions, and (2) other offences. All appeals falling under category
(1), together with applications for leave under sub-s. (3) of s. 378,
H have to be beard by a Bench of two .Judges, and other appeals falling
under category (2), together with applications for leave under sul)-~,
(3) of s. 378, are to be heard ~by a Sin~le Judge.
id.I>. stATE v. l>EWAl>AS (Sen, J.) 9:\
In the result, the appeal must succeed and is allowed. The A
order passed by the High Court, dismissing the application for leave
under sub-s. (J) of s. 378 of the Code of Criminal Procedure, 1973,
filed by the State Government of Madhya Pradesh, is set_ aside, and
it is directed that the application shall be dealt with by a Bench of
two Judges as required by r. I (q) (1i), Chap. I, Part I, of the Madhya
Pradesh High Corut Rules, prior to its amendment.
_,'
H.L.C. Appeal allowed.

'