S. 378 CrPC | Right To Appeal Against Acquittal Should Be Used By The State Sparingly: Orissa High Court

The Orissa High Court has advised the State to exercise its right to appeal against acquittal, as provided under Section 378 of the Code of Criminal Procedure, sparingly and with circumspection. While denying the leave to prefer an appeal, the Single Judge Bench of Justice Sangam Kumar Sahoo remarked, “The right of appeal against acquittal vested in the State Government should be used sparingly and with circumspection and it is to be made only in case of public importance or where there has been a miscarriage of justice of a very grave nature.” Factual Background The complainant had undertaken a work for construction of staff quarters. After he completed the work, he received the payment of a certain amount. But he was entitled to get a further amount for which he repeatedly approached the accused, who was an Assistant Engineer. The latter allegedly did not show any interest in passing the bill and demanded an amount of Rs. 15,000/- as bribe to do the work. Later on, he stated to have agreed to lessen the amount to Rs. 10,000/-. The complainant lodged an FIR before the SP, Vigilance basing on which a case was registered. A trap was laid and the police allegedly recovered the tainted money from the table of the accused and seized the same along with the connected work file. After obtaining the chemical examination report and sanction from the competent authority and on completion of investigation, a chargesheet was submitted against him. After examining all the material evidence on record, the Trial Court was of the view that the prosecution failed to prove its case beyond all reasonable doubts and thereby, extended the benefit of doubt to the accused and acquitted him. Thus, the State has filed this petition seeking leave to file an appeal against the acquittal order. Court’s Observations The Court made it clear that it is the bounden duty of the prosecution to first prove the foundational facts, i.e. demand, acceptance and recovery of the alleged bribe money from the accused. Only after these foundational facts are proven that the statutory presumption as provided under Section 20 of the Prevention of Corruption Act would come into play and the accused will be required to rebut such presumption. “…the Court must take into consideration the facts and circumstances brought on the record in its entirety and the standard of burden of proof on the accused vis-à-vis the standard of burden of proof on the prosecution would differ. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then burden of proving the defence shifts upon the accused”, the Court observed further. Again, the Court was of the view that the State must exercise restraint while resorting to its statutory right to appeal against acquittal and urged it use that right sparingly, with circumspection. The Bench also relied upon the rulings of the Apex Court in Babu v. State of Uttar Pradesh; Ghurey Lal v. State of Uttar Pradesh; Bannareddy v. State of Karnataka, wherein High Courts were advised not to interfere with well-reasoned orders of Trial Courts unless the same are arbitrary, irrational or improbable. Accordingly, the Court stated: “Thus, an order of acquittal should not be disturbed in appeal under section 378 of Cr.P.C. unless it is perverse or unreasonable. There must exist very strong and compelling reasons in order to interfere with the same. Findings of fact recorded by a Court can be held to be perverse, if the same have been arrived at by ignoring or excluding relevant materials on record or by taking into consideration irrelevant/inadmissible materials or if they are against the weight of evidence or if they suffer from the vice of irrationality.” Against the backdrop of the aforesaid legal position, the Court found that in absence of any material produced by the prosecution to prove demand and acceptance of the tainted money by the accused-respondent and since the informant and the overhearing witness turned hostile, there is significant discrepancy relating to recovery of tainted money from the accused. Accordingly, the petition was dismissed, denying the leave. Case Title: State of Odisha (Vig.) v. Debasis Dixit Case No.: CRLLP No. 26 of 2015 Judgment Dated: 13th January 2023 Coram: S.K. Sahoo, J. Counsel for the Petitioner: Mr. Sangram Das, Standing Counsel (Vigilance) Counsel for the Respondent: Mr. J.K. Panda, Advocate Citation: 2023 LiveLaw (Ori) 12Click Here To Read/Download Judgment

S. 378 CrPC | Right To Appeal Against Acquittal Should Be Used By The State Sparingly: Orissa High Court

Jyoti Prakash Dutta

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