Criminal Leave Petitions

What is a Criminal Leave Petition

It is an appeal against an order of acquittal from any court other than the High Court, it is an extraordinary remedy where the initial presumption of innocence of the accused which has been duly vindicated by a competent court is put in jeopardy along with the interest of the accused.

Section 378 of Code of Criminal Procedure, 1973,( hereinafter referred to as “CrPC”) states remedy and its several restrictions. These restrictions are intended to safeguard the interests of the accused person and to save the accused from personal vindictiveness.

Official Definition

Section 378 of CrPC empowers the District Magistrate to direct the public prosecutor to present an appeal to the Court of Session from an order of acquittal passed by the Magistrate incase of cognizable and non-bailable offenses. It empowers the State government to 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.

It also arms the central government with both these provisions in case the order of acquittal is passed where  offense has been investigated by the Delhi Special Police Establishment or by any other agency empowered to make investigation into an offense under any Central Act other than this Code.

Sub-section 3 makes it clear that for such an appeal to be entertained in a High Court, the leave of the High Court is mandatory.  Sub-section 4 allows the complainant to present an appeal to the high court if a special leave to appeal is granted to him, only in case where the order of acquittal was passed by the complaint.

Sub-section 5 puts a time limit on the application on sub-section 4, in case the complainant is a public servant then no application under s. 378 (4) shall be entertained on the expiry of 6 months, and for every other case it is 60 days, computed from the date of that order of acquittal.

Lastly, if the application under sub- section (4) for the grant of special leave to appeal from an order of acquittal is refused, under sub-section 6 any subsequent application under s.378 (1) and (2) will not be entertained.

Procedure of Section 378 CrPC

According to the first sub-sections of the section 378 an appeal against an order of acquittal can be preferred only:

1. By the government, and
2. In a case instituted upon complaint, by the government as well as by the complainant

Secondly, the right of such an appeal can only be exercised after obtaining the leave of the High Court.

Thirdly, whether the order of acquittal was passed by the Magistrate or any Sessions Judge, or offense for which the accused is acquitted is a major or a minor offense, the appeal of every case in such acquittal can only be made to the High Court. Fourthly, according to sub-section (6) an appeal made by the state under sub-section (1) or (2) is barred in case the private complainant has failed to obtain special leave to appeal under sub-section (4). Fifthly, application for grant of leave to appeal must be filed within the period of limitation prescribed by article 114 of Schedule of the Limitation Act, 1963.

Procedure of filling an appeal under section 378 will be defined by the state. In Dwarka Dass v. State of Haryana, the Hon’ble Supreme Court stated that:

“High Court does not have authorisation by and under the existing legal system to exercise any advisory jurisdiction. The Government has its agencies to advise and in the event the Government feels it expedient to obtain the advice from such agency or agencies, it is for the Government to decide and not for the High Court to suggest. Direction to file appeal not only stands as an excessive use of jurisdiction but indicates exercise of advisory jurisdiction which the High Court does not possess and is unknown to law.”

The settled position on the matter is that The High Court does not have any jurisdiction or authority to issue a directive to the state to file appeals against the acquitted accused.

Principles Regulating the Appeal

Through various cases the courts have reiterated and emphasized upon several principles of law governing this appeal to make sure that it is not used in an absolute manner by appellate courts.

In M.S. Narayana Menon v. State of Kerala, the apex court while narrating on the powers of the appellate to hear such appeals observed:

“In any event the High Court entertained an appeal treating it to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two views are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below.”

In State of Goa v. Sanjay Thakran, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under:

“From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.”

These are just some of the principles that dictate how the appellate court is supposed to use this wide discretionary powers. More can be found in RV Kelkar’s Criminal Procedure book.

In short, The appellate court should seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above questions in the negative the order of acquittal is not to be disturbed.

Interest of the Accused

While an appeal under s. 378 of CrPC is an extraordinary remedy, it can be dangerous towards the interests of the accused considering that he/she has already been found innocent by a competent court.

In Chandrappa v. State of Karnataka, the Apex Court laid down the following principles;

“From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge:

[1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.

[2] The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

[3] Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

[4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favor,l of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent

Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.

[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.”

In cases of appeal to leave against the order of acquittal, high courts have extraordinary power which makes this a powerful recourse. However, it is important that this power is used sparingly by the courts as they might stand repugnant to person’s rights.

Appearance in Official Database

Petitions under section 378 of the criminal procedure code (CrPC) are covered as different case types across different High Courts. These can include “criminal leave petition”, “criminal leave miscellaneous petition” or “criminal appeal”.

In High Court of Kerala, it is enlisted as CrLP 'Criminal Leave Petition'.

High Court Kerala Website, <https://hckinfo.kerala.gov.in/digicourt/Casedetailssearch/Statuscasetype>

In Rajasthan High Court appeal under s. 378 CrPC is mentioned as “criminal leave to appeal”.

High Court of Rajasthan, <https://hcraj.nic.in/cishcraj-jdp/>

In Delhi High Court, it  is mentioned as “CRL.L.P.- criminal leave petition.

https://delhihighcourt.nic.in/court/case

In the High Court of Orissa, Criminal Leave Petition is mentioned as “CRLLP”,i.e., Criminal leave to appeal.

In Jammu and Kashmir High Court, the appeal is referred to as “CrL. L.P.” Special Leave Application.

High Court of Jammu and Kashmir, <https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/s_casetype.php?state_cd=12&dist_cd=1&court_code=1&stateNm=Jammu%20and%20Kashmir>

In Calcutta High Court, it is mentioned as “CRMSPL” i.e., criminal miscellaneous petition (special leave to appeal).

Similar Terms

Criminal leave petition as envisaged in s.378 of CrPC can be confused with criminal special leave petition. However, they are on two very different footing and give the concerned courts different powers.

Criminal special leave petition refers to the power granted to the Hon’ble Supreme Court grant special leave to appeal from any judgment, decree, determination, sentence or order in any criminal cause or matter passed or made by any court or tribunal in the territory of India. It is envisaged in article 136 of the constitution. It states:

“The Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.”

Criminal leave petition however, is an appeal against the order of acquittal of lower courts other than high courts. It grants power to high courts to grant such an appeal and the government to instruct the public prosecutor to do so.