STATE OF MADHYA PRADESH versus DEWADAS & ORS.

Citation: [1982] 3 S.C.R. 81 · Decided: 29-01-1982 · Supreme Court of India · Bench: A.D. KOSHAL · Disposal: Appeal(s) allowed
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Judgment (excerpt)

81 
STATE OF MADHYA PRADESH 
v. 
DEWADAS & ORS. 
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-
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 
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 
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 
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 
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 
learned Single Judge had jurisdiction to deal with the application for leave under 
sub ... (3). 
A 
B 
c 
D 
E 
F 
G 
H 
A 
B 
c 
D 
E 
·F 
G 
H 
82 
strPRl!Mil COURT REPORTS 
(1982) 3 'S.C.1'. 
... 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 
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, 
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 
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 
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 und
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