Leave To Criminal Appeal Not Automatic, Can Only Be Granted After Application Of Mind: Kerala High Court

The Kerala High Court has recently established that leave to a criminal appeal can only be granted after proper application of mind by the Court to see if arguable points have been raised in the appeal.

Justice Kauser Edappagath held so while referring to the decision in State of Maharashtra v. Sujay Mangesh Poyarekar [(2008) 9 SCC 475] where it was held that in deciding if leave should be granted, the High Court must apply its mind and consider whether a prima facie case has been made out or arguable points have been raised.

The prosecution case was that three accused restrained a woman from using a pathway and when questioned, she was attacked by them. While the first accused was convicted for voluntarily causing hurt to the woman, the other two were acquitted by the trial court. 

Challenging this acquittal, the prosecution moved a criminal leave petition seeking leave to prefer an appeal. 

Public Prosecutor Sheeba Thomas submitted that there is sufficient evidence to prove the guilt of the other two accused and the trial court was not correct in acquitting the accused. It was also argued that a prima facie case has been made out to grant leave.

However, Advocate Kaleeswaram Raj assisted by Advocates Varun C. Vijay and Thulasi K. Raj and Advocate B. Mohanlal appeared for the respondents and submitted that the petitioner has not made out a prima facie case and added that they failed to raise even an arguable point to grant leave. 

It was also pointed out that the second accused got employed as Police Constable and he also underwent training. His appointment was denied only on account of the pendency of this petition. 

While considering the leave petition, the Court recalled that there was no proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial court must be allowed by the appellate court and every appeal must be admitted and decided on merits. 

Moreover, it was noted that the allegation against the second accused was that he used a stick to beat the woman. It was also found that no serious overt act was alleged against the third accused other than uttering obscene words and criminally intimidating her.

The Judge further observed that there was a vital contradiction in the 161 statements of the woman, which was brought out in the cross-examination as well. There was no medical evidence to prove that the second accused had accused any injury to her either. 

Hence, the Court held that the trial court had rightly found no convincing evidence to connect the second and third accused to the crime. 

As such, leave sought for was declined citing that the State had failed to make out a prima facie case or even arguable case. 

Case Title: State of Kerala v. Ratheesh & Anr. 

Citation: 2022 LiveLaw (Ker) 134

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