Leave to appeal does not compel the record: Allahabad HC on dismissing an acquittal appeal summarily
Answering a preliminary objection raised by the State’s own law officers, a Division Bench holds Section 385 CrPC governs only appeals that survive summary dismissal under Section 384.
The objection came from an unusual direction. As the Lucknow Bench of the Allahabad High Court began hearing a government appeal against an acquittal, it was the State’s own counsel who asked the Court to stop — not to decide the appeal at all until the trial court record had been summoned, and not to decide it summarily. On 18 September 2026, in State of U.P. Thru. Prin. Secy. Home, Lko. v. Sharad Rastogi and 4 Others, a Division Bench of Justice Pramod Kumar Srivastava and Justice Abdul Moin answered the point and then dismissed the appeal.
The answer matters to every acquittal appeal filed in the State. Once leave has been granted under Section 378 of the Code of Criminal Procedure, the Bench held, there is no requirement to decide the appeal only after summoning the record. Section 385, which does mandate sending for the record, governs the hearing of an appeal that has not been dismissed summarily. The power of summary dismissal in Section 384 carries only a discretion to call for the record — never an obligation.
The objection, and why it was taken
Appearing for the appellant State, the learned AGA with a team of counsel raised the point before argument on merits began. Section 385(2), they submitted, uses the word “shall”, and therefore mandates the summoning of the record; the appeal could not be decided summarily.
The Bench began where the scheme begins. Section 378 deals with appeals in cases of acquittal, and sub-section (3) provides that no such appeal to the High Court shall be entertained except with leave. The Supreme Court in State of Maharashtra v. Sujay Mangesh Poyarekar held that an appeal can be registered and heard on merits by the High Court only after leave is granted on an application under that sub-section. So the State’s premise was correct as far as it went: leave had been granted, and the appeal was properly before the Court.
Two sections, two different powers
What the objection missed, on the Bench’s reading, is that the Code sets out two distinct routes after that point.
Section 384 confers the power of summary dismissal where the appellate court considers there is no sufficient ground for interfering. It carries its own safeguard: no appeal presented under Section 382 shall be dismissed unless the appellant or the pleader has had a reasonable opportunity of being heard in support of it. And sub-section (2) provides that before dismissing an appeal under the section, the court may call for the record of the case. The legislature has therefore given the appellate court the power to dismiss summarily, and a discretion — not a duty — to call for the record when it does.
Section 385 prescribes the procedure for hearing an appeal that is not dismissed summarily. It requires notice of the time and place of hearing to the appellant or the pleader or such officer as the State Government appoints; to the complainant where the appeal is from a conviction in a complaint case; and to the accused in appeals under Section 377 or Section 378. Sub-section (2) then mandates that the appellate court send for the record and hear the parties — save that where the appeal is only as to the extent or legality of the sentence, it may be dismissed without sending for the record.
Read together, the Bench held, the sections carve out a distinction. Where an appeal may be dismissed summarily there is no requirement to call for the record and a discretion is given instead; Section 385 mandates summoning only in the other case. The conclusion follows that even where leave has been granted under Section 378, the appeal need not be decided after summoning the record, because the legislature has in its wisdom provided for two eventualities.
The authorities the Bench worked through
The judgment does not rest on the text alone. It takes the reader through the case law on both sides of the question.
Sujay Mangesh Poyarekar itself holds that there is no abstract proposition of universal application that every petition for leave against an acquittal must be allowed and every appeal admitted and decided on merits — while adding that where arguable points are raised and the material discloses the need for deeper scrutiny and re-appreciation of evidence, leave must be granted and the appeal decided on merits. The Court is not to enter into minute details of the prosecution evidence at the leave stage.
Surya Baksh Singh v. State of U.P. was cited for the same distinction between Sections 384 and 385, and for the proposition that appeals against acquittal are distinct from all others because of the express leave requirement. A Division Bench of the same High Court, in State of U.P. v. Vakil, had already held that the material specified in Section 384(1) for the purpose of considering summary dismissal — the petition of appeal and the copy of the judgment — denotes the legislative intent as to what the appellate court needs, with sub-section (2) merely enabling more.
Hanumat Das v. Vinay Kumar supplies the short answer that non-summoning of lower court records in appeal is not fatal. Sita Ram v. State of U.P. upheld the vires of Section 384, under which an appeal may be dismissed summarily without calling for the record.
The Bench was equally careful about what those authorities do require. Dagadu v. State of Maharashtra, relying on Govinda Kadtuji Kadam and Sita Ram, holds that even where the High Court chooses to dismiss an appeal summarily, some reasons must be recorded so that the Supreme Court can judge whether the case deserved further examination. In those cases the High Court had disposed of criminal appeals with the single word “rejected” or “dismissed”. The Bench accepted the principle without qualification: reasons in an order are the soul of an order, and even a summary dismissal under Section 384 — now Section 425 of the Bharatiya Nagarik Suraksha Sanhita — must carry them.
The judgment also records a passage on proportionality in appellate practice: where the subject matter is less momentous, where two courts have already assessed the evidence and given reasoned decisions, pragmatism legitimates passing judgment at the third tier in appropriate cases where the conclusion is one of affirmance, because natural justice cannot be fixed on a rigid frame and fundamental fairness is responsive to circumstances.
Govindaraju, on which the State relied for the proposition that once leave is granted there is hardly any difference between a normal appeal and an appeal against acquittal, was distinguished on its facts: there the High Court had interfered with an acquittal and was held to have erred, which was not the position here.
The appeal itself
Having answered the preliminary objection, the Bench turned to the appeal, which arose from an acquittal in a case involving allegations by a prosecutrix. The Court’s treatment of the merits is framed as a review of whether the trial court’s view was a possible one.
The judgment accepts as settled that the statement of a prosecutrix must be given pre-dominant consideration, and then states the qualification: nobody in a civilised society can be implicated or held guilty merely because there is such a statement. The statement cannot be treated as gospel truth, and the court has to satisfy itself that the witness is of sterling quality. Were it otherwise, the Bench observed, a statement recorded under Section 164 or Section 161 CrPC would be enough to put a person behind bars and there would be no need to conduct a trial at all.
On the record, the trial court had scrutinised the testimony and found contradictions in the victim’s account; the investigating officer had deposed that the parties had been in a relationship and had been willing to marry; the cyber cell report recorded that no responsive record was located in respect of the allegedly circulated material, and no such material was recovered; the FIR had been lodged after an inordinate delay without plausible explanation; the victim was found not to be a minor at the time of the alleged incident; and there was a pre-existing tenancy dispute between the informant and a relative of the accused.
On that material the Bench held that the trial court had taken a possible view on the entire evidence — one that was fair and reasonable and could not be termed perverse. It reiterated the double presumption that operates in an appeal against acquittal: the presumption of innocence, reinforced by the acquittal itself. Finding no manifest error, illegality, non-application of mind or non-appreciation of evidence, it held the appeal devoid of merit.
What it changes for the State
The practical effect runs against the party that raised the point. A State that has obtained leave under Section 378 cannot treat leave as a guarantee that the appeal will be heard on a full record, or as a bar to the High Court concluding, on the memorandum of appeal and the judgment, that there is no sufficient ground for interference. The Court keeps the discretion to send for the record, and will use it where the material discloses the need for deeper scrutiny — but the decision belongs to the Court, not to the appellant.
What the judgment does not do is licence a one-word disposal. Every authority the Bench relied on for the power to dismiss summarily came paired with the requirement to explain. On the Bench’s own formulation, reasons are the soul of an order, and that requirement survives the recodification: the power now sits in Section 425 of the Bharatiya Nagarik Suraksha Sanhita, and the obligation to record reasons travels with it.
For an accused who has been acquitted, the reading has an obvious value. An acquittal appeal that discloses no arguable point need not put the respondent through the summoning of a decades-old record and a full rehearing before it can be disposed of.
Order
The preliminary objection was rejected and the government appeal was dismissed summarily, with reasons recorded. The acquittal stands.