Uttarakhand High Court
Smt. Rekha Raghuvanshi vs State Of Uttarakhand & Others on 13 October, 2023
Order reserved on: 06.10.2023
Order delivered on : 13.10.2023
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.285 of 2023
Smt. Rekha Raghuvanshi ........Appellant
Versus
State of Uttarakhand & others ........Respondents
Present:-
Mr. P.C. Petshali, learned counsel for the appellant.
Mr. J.S. Virk, learned Deputy Advocate General with Mr.
Rakesh Kumar Joshi, learned Brief Holder for the State.
ORDER
Coram: Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Pankaj Purohit, J.
In a broad daylight murder, one practising
Advocate lost his life. As per the prosecution version, on
13.09.2017 at about 11:15 a.m., when deceased Susheel
Kumar Raghuvanshi came out of his house for going to
the court, he was shot by two unknown persons, riding
on a motorcycle; he was taken to the hospital where he
expressed suspicion upon (i) Dabbu @ Serveshwar
Prasad, (ii) Brijesh and (iii) Lala Ji @ Vinod Garg for
conspiring for his murder. Later on, while being taken to
a higher centre for further treatment, he died on the way
to Dehradun near Haridwar. The investigation ensued on
the first information report lodged by wife of deceased,
which was registered in Police Station Kotdwar on
14.09.2017 at about 00:10 a.m. Based on the FIR, a Case
Crime No. 281 of 2017 under Section 302 IPC was
registered against the accused persons on whom
suspicion was expressed by the deceased, namely, Vinod
Lala, Amar Singh, younger son of Jagat Singh and two
unknown persons, who were motorcycle borne assailants.
A charge-sheet was filed under Sections 302 & 120-B IPC
against as many as seven persons. After trial, learned
Additional Sessions Judge, Kotdwar, Pauri Garhwal, vide
judgment and order dated 31.03.2023, acquitted all the
accused persons of the charge levelled against them.
2. Against acquittal of the accused persons, wife
of the deceased, Smt. Rekha Raghuvanshi (informant of
the case), filed instant appeal before this Court under
proviso to Section 372 of the Cr.P.C. The appeal was
admitted. Trial Court Record was summoned and notices
were issued to the private respondents-accused persons.
3. On 12.07.2023, this Court directed learned
counsel for the State to get instructions as to whether
State intends to file appeal against the judgment and
order impugned in this appeal and the case was
adjourned to 18.08.2023.
4. On 18.08.2023, learned State Counsel
produced one letter dated 22.07.2023, received by his
office from District Magistrate, Garhwal. From perusal of
the letter, it was revealed that State Government refused
to grant permission to file appeal against order of
acquittal recorded by learned Trial Court. Along with said
letter, copy of order dated 12.07.2023, issued by Joint
Secretary (Law), was enclosed, which revealed that Law
Department of the State has turned down the proposal
submitted by District Magistrate for filing appeal.
5. Having gone through the impugned judgment
and after hearing learned counsel for the appellant, this
Court prima facie found that there is enough material for
filing appeal against acquittal by the State Government.
This Court was surprised to note that when on
12.07.2023, State Counsel was asked to get instructions
as to whether State intends to file appeal, the very same
day, the proposal for filing appeal submitted by District
Magistrate, Pauri Garhwal was turned down, which was
pending with the Law Department since 11.05.2023. On
this, the Registry was directed to call for comments from
the Joint Secretary (Law), Government of Uttarakhand
and the matter was adjourned to 14.09.2023.
6. On 14.09.2023, Joint Secretary (Law)
submitted his report which was found unsatisfactory.
From the report, it was revealed that Principal Secretary
(Law) is the final authority to take decision regarding
filing of appeal. Consequently, this Court directed the
Registry to call explanation from the Principal Secretary
(Law) and the matter was adjourned to 04.10.2023.
7. Pursuant to order of the Court, Principal
Secretary (Law) has submitted explanation through
Deputy Registrar (Judicial) vide letter dated 21.09.2023.
8. Principal Secretary (Law) in his explanation has
mentioned that only in cases where there is difference of
opinion between Joint Secretary and Additional Secretary,
he can go with the opinion of either of the two officers.
Relevant extract of the reply given by Principal Secretary
(Law) is reproduced below:
"In this regard it is again most humbly submitted that
Principal Law Secretary being the Senior most officer in
the Law department facilitates the process of request
on the opinion rendered by the officers through whom
the file reaches to the Principal Law Secretary. In Law
Department all the files of various department are
routed through Principal Law Secretary. It is only in
cases where there is difference of opinion between Joint
law Secretary opinion and Additional law Secretary
opinion in that case, the Principal law Secretary can
concur with the opinion of either of the officer on
particular request and that opinion of Principal Law
Secretary becomes final."
9. Public interest demands that appeal against
judgment/order passed by Courts, both civil and
criminal, are filed in appropriate cases and unnecessary
appeals are not filed where filing of appeal would be a
useless exercise. Law Department grants permission to
file appeal, and no appeal can be filed on behalf of the
State without permission of the Law Department. Thus,
Law Department has to perform an important public
function. Faith of the common people in the system
erodes when permission for filing appeal is denied in
appropriate cases. Similarly, permission for filing appeal,
when granted without application of mind, results in
clogging of the superior Courts. Thus, a judicious
approach has to be adopted by the Law Department while
deciding whether to grant permission for filing appeal in a
given case, and for discharging this important public
function, Judicial Officers are posted in the Law
Department, who are expected to scrutinise the
record/evidence in order to form an opinion as to whether
a given case is fit for filing appeal or not. However, we are
aghast to learn that the proposals for appeal, received by
the Law Department, are considered by junior officers,
who have little or no experience of dealing with matters of
public importance, and the highest officer in the
department simply concurs with the view expressed by
his junior officers. This is unbecoming of a Judicial
Officer of the rank of senior Principal District and
Sessions Judge, posted as Principal Secretary (Law).
10. We disapprove of the stand taken by the
Principal Secretary (Law) that the District Government
Counsel (Criminal) alone is responsible for not indicating
the grounds on which the acquittal order was to be
challenged, as it is for the Judicial Officers manning Law
Department to find out the infirmity, if any, in the
judgment against which appeal is proposed and the
possible grounds on which the appeal can be filed.
11. In Government Offices, especially in
Secretariat, a paper under consideration is examined at
different levels and each officer gives hand written
observations on the office note and their notings indicate
their thought process. These notes give an idea of the
inputs on the basis of which decisions are taken.
Although, officers at different levels may express divergent
views on a given subject, however, final call in the matter
is always taken by the Secretary/Principal Secretary of
the concerned Ministry/Department, who forms his
opinion based on the views expressed by his subordinate
officers. This practice unfortunately does not appear to
have been followed in the Law Department. The reply
indicates that either the Principal Secretary (Law) is not
able to take independent decisions or he avoids
responsibility of taking decisions.
12. We disapprove of the manner in which the
proposal for filing appeal, submitted by District
Magistrate, Pauri Garhwal, was dealt with by the
Principal Secretary (Law). He is warned to be careful in
future.
13. Let a copy of this order be placed in service
record of the officer concerned, with intimation to him.
14. Appellant is directed to take steps within a
week in terms of order dated 17.5.2023. List this appeal
for hearing on 18.12.2023.
(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.)
AK
