KERALA STATE ELECTRICITY BOARD Vs. SUKUMARAN

JUDGEMENT

(1.) This appeal is against an order of acquittal. The appellant is Kerala State Electricity Board which figured as the complainant in the Trial Court. When this appeal came up for final arguments, a preliminary objection has been raised that the appeal is not maintainable since the application for special leave envisaged in S.378(4) of the Code of Criminal Procedure (for short 'the Code') was filed long after the expiry of the period of sixty days of the date of the order of acquittal.

(2.) S.378 of the Code contains provisions regarding appeals against acquittals. Sub-s.(4) enables the complainant (in a case instituted upon complaint) to present the appeal from an order of acquittal with special leave granted by the High Court "on an application made to it by the complainant in this behalf". Sub-s.(5) says that "no application under sub-s.(4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal". The preliminary objection is based on the fact that no application was filed for the grant of special leave before the expiry of the aforesaid period. To examine the position, the following facts are to be stated.

(3.) The Trial Court acquitted the accused on 29-1-1986, and the appellant obtained a certified copy of the judgment on 28-2-1986. The time available to the appellant for filing the application for special leave is only sixty days computed from the date of the order of acquittal. As the appellant is entitled to get exclusion of the time for obtaining a certified copy of the judgment, the period of sixty days can be computed from 28-2-1986. Sixty days from the said date would have expired on 28-4-1986. The appellant, instead of filing an appeal, filed a petition for revision on 3-7-1986. The appellant later realised that no revision would lie and hence filed an application for converting the petition for revision into a petition for appeal. That application was allowed on 5-1-1987. Even till then, the appellant did not file the application for grant of special leave. For reasons known to the appellant, an application for special leave was filed only on 31-8-1988. However, the said application was allowed ex parte and special leave was granted. Learned counsel for the respondent now contends that the special leave granted without affording an opportunity to the respondent is not binding on him and that, at any rate, he has the right to point out the legal infirmity in the special leave. In answer to the said contention, it was argued that since the special leave was already granted, it is not open to any party to canvass for its revocation. Learned counsel further contended that grant or refusal of leave is a matter between the appellant and the court and the respondent has no locus standi in the matter. In support of the said stand, learned counsel invited my attention to the decision of the Division Bench of the Assam High Court in Silchar Munpl. Board v. Mukul Chandra (AIR 1968 Assam 24). The Division Bench pointed out that "under S.417(4), there is no provision for issuing notice or hearing the respondent before granting leave, the grant or refusal of the leave being purely a matter of discretion of the Court receiving the leave application". On the said reasoning, it was held that it is not open to the High Court to reexamine the validity of the order by which leave was granted. It is a case in which there was an application for condonation of delay involved in filing the application for special leave and the delay was condoned, of course, at the stage when the opposite party had not entered appearance. With great respect, I am unable to agree with the reasoning as it denies a respondent the right or voice in the matter of grant of special leave in any circumstance. If there is any legal hurdle in granting special leave the appellant may be reluctant to point it out since it would be to his detriment. The party who is aggrieved in the grant of special leave overlooking the legal embargo cannot be denied the right to canvass that the appeal is not maintainable on the ground of defective application for special leave. It may be that special leave can be granted ex parte at the early stage, but that is no ground to hold that the opposite party shall have no right at any stage to assail the validity of the special leave or the sustainability of the application for it. If the respondent can have the right to question the sustainability of the order or the application by challenging it before a higher court, he must also have the right to bring it to the notice of the court which granted the special leave since he did not have such an opportunity earlier.