STATE OF KERALA Vs. ABDUL RASAK ALIAS SRANK

JUDGEMENT

(1.) All these petitions are filed under S.378(3) of the Code of Criminal Procedure by the State of Kerala for leave of this Court to file criminal appeals against the order of acquittal. The State filed leave petitions since this Court passed order on 5.1.2000 in Criminal Appeal 919 of 1999 ordering that an appeal preferred by the State can be treated as an appeal in terms of S.378(3) Cr.P.C. only if leave is granted by this Court. We may extract the order of this Court for easy reference.

(2.) We perused the judgment of the Apex Court. We are of the view the order passed by this Court referred to hereinbefore is not the correct legal position in view of the decision of the Apex Court. We notice the decision of the Apex Court was not brought before the knowledge of this Court when this court passed the order mentioned above. This issue directly came up for consideration before the Apex Court in Ramdeen's case (supra). Before the Apex Court it was pointed out that the practice followed by the Rajasthan High Court was to file a separate memo of appeal in all matters relating to the grant of leave to appeal under S.378 Cr.P.C. The Apex Court observed it is difficult to appreciate the reference to practice, by the High Court, so far as appeals by State are concerned when the new Code of Criminal Procedure, for the first time, provided for obtaining leave to appeal by the State only from April 1, 1974. The Court noticed that there was no rules laid down by the High Court in the matter of application for leave to appeal by the State. According to the Apex Court, it is therefore not possible to decide the matter relying upon the so - called practice soon after the provision has been introduced. Referring to S.378(1) and (3) the Apex Court held as follows: