ORDER
K.S. Radhakrishnan, J.
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 991 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.
“We find that in terms of S. 378(3) Cr. P.C. leave has to be obtained of the Court where an appeal in terms of sub-s. (1) or (2) is filed against an order of acquittal. Obviously a separate petition has to be filed seeking leave of the High Court and until that leave is granted the appeal preferred cannot be treated to be in terms of S.378(3) Cr. P.C.Learned counsel for the State submits that a separate petition shall be filed in this regard. Call next week.
2. If an application for grant to leave is filed by the State the same shall be registered as Crl.M.C.”
Learned Public Prosecutor submitted that State need not file a separate petition for leave to appeal under sub-s. (3) of 378 Cr. P.C. but need file only a composite application along with the appeal. Public Prosecutor submitted that there is no necessity to obtain leave of the High Court and then prefer an appeal against acquittal. Reliance was placed on the decision of the Apex Court in State of Rajasthan Ramdeen & Or., 1977 SCC (Crl) 393.
2. We perused the judgment of the Apex Court. We are if 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 camp 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 t he High Court, 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 State. According to the Apex Court it is therefore not possible to decide the matter relying upon the so-called and (3) the Apex Court held as follows:
“The matter will, therefore, have to be decided in terms of S. 378(1) and (3) of the Code of Criminal Procedure, 1973. S. 378(1), so far as it is material for purpose, provides that the State Government may direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal. Sub-s. (3) of that section provides that such an appeal shall not be entertained except with the leave of the High Court. Under the law it will be perfectly in order if a composite application is made giving the necessary facts and circumstances of the case along with the grounds which may be urged in the appeal with a prayer for leave to entertain the appeal. It is not necessary, as a matter of law, that an application for leave to entertain the appeal should be lodged first and only after grant of leave by the High Court an appeal may be preferred against he order of acquittal. If such a procedure is adopted, as above, it is likely, as it has happened in this case, the appeal may be time-bared if the High Court takes more may always in such cases condone the delay on application filed before it does not, in law, solve the legal issue. The right conferred by S. 378(1), Cr.P.C., upon the State to prefer an appeal against acquittal will be jeopardised if such a procedure is adopted, for in certain cases it may so happen that the High Court may refuse to exercise its discretion to condone the delay. The right conferred under the Section cannot be put in peril by an interpretation of S. 378, Cr.P.C. which is likely to affect advisely or even perhaps to destroy that right.”
In view of the above authoritative pronouncement by the Apex Court we are of the view the direction given by a Bench of this Court on 5.1.2000 cannot hold good. Accordingly, we are clearly of opinion that the applications for leave to appeal, which were made by the State are equivalent to memorandum of appeals under S. 378(1) read with sub-s. (3) of that Section of the Code of Criminal Procedure, 1973. We are of the view the State need not file only a composite application and there is no necessity of filing a separate petition for leave before preferring an appeal against acquittal. It is so ordered.