CRL. APPEAL NOS. 119-122 OF 2017
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 119-122 OF 2017
AJAY KUMAR GHOSHAL ETC. …Appellant
Versus
STATE OF BIHAR & ANR. ...Respondent
J U D G M E N T
R. BANUMATHI, J.
These appeals are directed against the common final order dated
28.08.2015 passed by the High Court of Judicature at Patna in Criminal
Appeal (SJ) No.230 of 2015, Criminal Appeal (SJ) No.275 of 2015,
Criminal Appeal (SJ) No.232 of 2015 and Criminal Appeal (SJ) No.243 of
2015 setting aside the judgment of the trial court and directing the retrial of
Session Trial No.14 of 2008/637 of 2008 against the appellants.
2. Briefly stated, case of the prosecution is that on 15.05.2007, Asim
Kumar Chatarjee (PW-5) filed a complaint before the Officer-in-Charge,
Tilakmanjhi, stating that his sister Bandhavi @ Bani Ghoshal was married
to Raj Kumar son of Ajay Kumar Ghoshal on 03.02.2007 and at the time of
her marriage, the complainant gave cash and ornaments as per his
capacity and all the usual gifts given in a marriage to the
accused-appellants. PW-5 asserted that the husband, father-in-law and
mother-in-law (Munmun Ghoshal) kept demanding dowry from his
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CRL. APPEAL NOS. 119-122 OF 2017
deceased sister and upon his inability to fulfill their demands, they in turn
tortured Bandhavi Ghoshal mentally and physically. The complainant
stated that on 15.05.2007, he received information from Bhagalpur about
the death of his sister deceased Bandhavi @ Bani Ghoshal in her
matrimonial home, in suspicious circumstances and he went to Bhagalpur.
The complainant stated that he saw the dead body of his sister and noticed
that her wrist veins were cut and her body had the marks of hanging,
assault and electrocution. On the basis of aforesaid, FIR was registered
under Section 304 (B), Section 34 IPC at Kotwali (Tilkamanjhi) P.S. Case
No.281 of 2007. After completion of investigation, the charge-sheet was
filed against the appellants under Sections 302, 304B, 201, 498A, 120B
IPC and Sections 3 and 4 of Dowry Prohibition Act.
3. In order to prove guilt of the accused, the prosecution has examined
twelve witnesses and exhibited documents and material objects. Upon
consideration of evidence, the trial court vide judgment dated 06.04.2015,
held that the prosecution has proved the guilt of the accused beyond
reasonable doubt and convicted all the appellants/accused persons, by
judgment dated 09.04.2015. For conviction under Section 304B read with
Section 120B IPC, the trial court imposed sentence of imprisonment for ten
years on each of the appellants. The appellants were convicted under
Section 201 IPC and were sentenced to undergo rigorous imprisonment for
five years as well as fine of Rs.10,000/- each with default sentence and
2
CRL. APPEAL NOS. 119-122 OF 2017
rigorous imprisonment for two years for the conviction under Section 4 of
Dowry Prohibition Act.
4. Being aggrieved by the verdict of conviction and the sentence
imposed upon them, the appellants/accused preferred separate appeals
before the High Court. Upon consideration of the contentions of the
parties, the High Court in paras (29) and (30) of its judgment pointed out
certain lapses on the part of Investigating Officer/trial court and held that
the trial court failed to take appropriate action on the lapses. After quoting
relevant extracts from the judgments in Mina Lalita Baruwa vs. State of
Orissa and Ors. (2013) 16 SCC 173 and Nar Singh vs. State of Haryana
(2015) 1 SCC 496, the High Court set aside the judgment of the conviction
and sentence recorded by the trial court and the matter was remitted back
to the trial court to proceed afresh in accordance with law. Being
aggrieved, the accused-appellants have preferred these appeals.
5. Learned counsel for the appellants submitted that the High Court
being the First Appellate Court should have appreciated the evidence on
its own merits; instead it erred in remitting the matter back to the trial court
to proceed afresh and the order for de novo trial would cause serious
prejudice to the accused-appellants.
6. We have heard the learned counsel for the State as well as counsel
for the complainant i.e. brother of the deceased Asim Kumar Chatarjee.
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CRL. APPEAL NOS. 119-122 OF 2017
Both of them submitted that the evidence available on record is sufficient to
sustain the conviction of the accused-appellants.
7. We have carefully considered the rival contentions and perused the
impugned order and other materials on record. The question falling for
consideration is whether there was serious irregularities in the prosecution
case thereby necessitating retrial and whether the irregularities pointed out
by the High Court are such as resulting in miscarriage of justice thereby
constraining the High Court to set aside the judgment of the Sessions
Court and direct for retrial.
8. In para (29) of its judgment, the High Court pointed out certain
lapses; but has not stated as to how such alleged lapses has resulted in
miscarriage of justice necessitating retrial. Certain lapses either in the
investigation or in the ‘conduct of trial’ are not sufficient to direct retrial. The
High Court being the First Appellate Court is duty bound to examine the
evidence and arrive at an independent finding based on appraisal of such
evidence and examine whether such lapses actually affect the prosecution
case; or such lapses have actually resulted in failure of justice. The
circumstances that should exist for warranting retrial must be such that
whether the trial was undertaken by the court having no jurisdiction or trial
was vitiated by serious illegality or irregularity on account of misconception
of nature of proceedings or that irregularity has resulted in miscarriage of
justice.
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CRL. APPEAL NOS. 119-122 OF 2017
9. The High Court copiously extracted the judgment in case of Nar
Singh vs. State of Haryana ( 2015) 1 SCC 496 to remit the matter to the trial
court for proceeding afresh. In Nar Singh’s case , some of the important
questions like Ballistic Report and certain other incriminating evidence
were not put to the accused and the same was not raised in the trial court
or in the High Court. It was felt that the accused should have been
questioned on those incriminating evidence and circumstances; or
otherwise prejudice would be caused to the accused. In such peculiar
facts and circumstances, Nar Singh’s case was remitted to the trial court
for proceeding afresh from the stage of Section 313 Cr.P.C. Be it noted
that in Nar Singh’s case , this Court has referred to a catena of other
judgments holding that omission to put certain questions to the accused
under Section 313 Cr.P.C. would not cause prejudice to the accused. It
depends upon facts and circumstances of each case and the nature of
prejudice caused to the accused. In our view, the High Court has not
properly appreciated Nar Singh’s case where this Court laid down that the
appellate court can order for fresh trial from the stage of examination under
Section 313 Cr.P.C., only in cases where failure to question the accused
on certain incriminating evidence has resulted in serious prejudice to the
accused. The High Court, in our view, has not properly appreciated the
ratio laid down in Nar Singh’s case and erred in applying the same to the
present case.
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CRL. APPEAL NOS. 119-122 OF 2017
10. Section 386 Cr.P.C. deals with the powers of the appellate court. As
per Section 386 (b) Cr.P.C, in an appeal from a conviction, the appellate
court may:- (i) reverse the finding and sentence and acquit or discharge
the accused, or order him to be re-tried by a Court of competent
jurisdiction subordinate to such Appellate Court or committed for trial, or (ii)
alter the finding, maintaining the sentence, or (iii) with or without altering
the finding, alter the nature or the extent, or the nature and extent, of the
sentence, but not so as to enhance the same.
11. Though the word “retrial” is used under Section 386(b)(i) Cr.P.C., the
powers conferred by this clause is to be exercised only in exceptional
cases, where the appellate court is satisfied that the omission or
irregularity has occasioned in failure of justice. The circumstances that
should exist for warranting a retrial must be such that where the trial was
undertaken by the Court having no jurisdiction, or trial was vitiated by
serious illegality or irregularity on account of the misconception of nature of
proceedings. An order for retrial may be passed in cases where the
original trial has not been satisfactory for some particular reasons such as
wrong admission or wrong rejection of evidences or the Court refused to
hear certain witnesses who were supposed to be heard.
12. ‘ De novo’ trial means a “new trial” ordered by an appellate court in
exceptional cases when the original trial failed to make a determination in
a manner dictated by law. The trial is conducted afresh by the court as if
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CRL. APPEAL NOS. 119-122 OF 2017
there had not been a trial in first instance. Undoubtedly, the appellate court
has power to direct the lower court to hold ‘ de novo’ trial. But the question
is when such power should be exercised. As stated in Pandit Ukha Kolhe
vs. State of Maharashtra (1964) SCR 926, the Court held that:
“ An order for retrial of a criminal case is made in exceptional cases,
and not unless the appellate court is satisfied that the Court trying
the proceeding had no jurisdiction to try it or that the trial was
vitiated by serious illegalities or irregularities or on account of
misconception of the nature of the proceedings and on that account
in substance there had been no real trial or that the Prosecutor or an
accused was, for reasons over which he had no control, prevented
from leading or tendering evidence material to the charge, and in the
interests of justice the appellate Court deems it appropriate, having
regard to the circumstances of the case, that the accused should be
put on his trial again. An order of re-trial wipes out from the record
the earlier proceeding, and exposes the person accused to another
trial which affords the prosecutor an opportunity to rectify the
infirmities disclosed in the earlier trial, and will not ordinarily be
countenanced when it is made merely to enable the prosecutor to
lead evidence which he could but has not cared to lead either on
account of insufficient appreciation of the nature of the case or for
other reasons.”
13. This Court, while dealing with the question whether the High Court
should have quashed the trial proceedings only on account of declaration
of the legal position made by the Supreme Court concerning the
procedural aspect about the cases involving offences under the SC/ST Act,
this Court stated, “a de novo trial should be the last resort and that too only
when such a course becomes so desperately indispensable; it should be
limited to the extreme exigency to avert ‘a failure of justice’. Observing
that any omission or even the illegality in the procedure which does not
affect the core of the case is not a ground for ordering a de novo trial”. In
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CRL. APPEAL NOS. 119-122 OF 2017
State of M.P. vs. Bhooraji and Ors. (2001) 7 SCC 679, the Court went on to
say further as follows:
“ 8….This is because the appellate court has plenary powers for
revaluating and reappraising the evidence and even to take
additional evidence by the appellate court itself or to direct such
additional evidence to be collected by the trial court. But to replay
the whole laborious exercise after erasing the bulky records relating
to the earlier proceedings, by bringing down all the persons to the
court once again for repeating the whole depositions would be a
sheer waste of time, energy and costs unless there is miscarriage of
justice otherwise. Hence, the said course can be resorted to when it
becomes unpreventable for the purpose of averting “a failure of
justice”. The superior court which orders a de novo trial cannot
afford to overlook the realities and the serious impact on the
pending cases in trial courts which are crammed with dockets, and
how much that order would inflict hardship on many innocent
persons who once took all the trouble to reach the court and
deposed their versions in the very same case. To them and the
public the re-enactment of the whole labour might give the
impression that law is more pedantic than pragmatic. Law is not an
instrument to be used for inflicting sufferings on the people but for
the process of justice dispensation.”
14. In Bhooraji’ s case , the Court referred to Chapter XXXV of the Code
and, particularly, Sections 461, 462 and 465 (1). After noticing the above
provisions, the Court observed in paragraphs (15) and (16) of the order as
follows:
“ 15. A reading of the section makes it clear that the error, omission
or irregularity in the proceedings held before or during the trial or in
any enquiry were reckoned by the legislature as possible
occurrences in criminal courts. Yet the legislature disfavoured axing
down the proceedings or to direct repetition of the whole
proceedings afresh. Hence, the legislature imposed a prohibition
that unless such error, omission or irregularity has occasioned “a
failure of justice” the superior court shall not quash the proceedings
merely on the ground of such error, omission or irregularity.
16. What is meant by a failure of justice occasioned on account of
such error, omission or irregularity? This Court has observed
in Shamnsaheb M. Multtani vs. State of Karnataka {2001 (2) SCC
577} thus:
“ 23. We often hear about failure of justice and quite
often the submission in a criminal court is accentuated
with the said expression. Perhaps it is too pliable or
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CRL. APPEAL NOS. 119-122 OF 2017
facile an expression which could be fitted in any
situation of a case. The expression failure of justice
would appear, sometimes, as an etymological
chameleon (the simile is borrowed from Lord Diplock
in Town Investments Ltd. v. Deptt. of the Environment,
1977 (1) All E.R. 813). The criminal court, particularly
the superior court should make a close examination to
ascertain whether there was really a failure of justice
or whether it is only a camouflage.”
15. In Gopi Chand vs. Delhi Administration AIR 1959 SC 609, a
Constitution Bench of this Court was concerned with the criminal appeals
wherein plea of the validity of the trial and of the orders of conviction and
sentence was raised by the appellant. That was a case where the
appellant was charged for three offences which were required to be tried
as a warrant case by following the procedure prescribed in the Code of
Criminal Procedure, 1860 but he was tried under the procedure prescribed
for the trial of a summons case. The procedure for summons case and
warrants case was materially different. The Constitution Bench held that
having regard to the nature of the charges framed and the character and
volume of evidence led, the appellant was prejudiced; accordingly, set
aside the orders of conviction and sentence and the Constitution Bench
held as under:-
“ 29. ….the offences with which the Appellant stands charged are of
a very serious nature; and though it is true that he has had to
undergo the ordeal of a trial and has suffered rigorous imprisonment
for some time that would not justify his prayer that we should not
order his retrial. In our opinion, having regard to the gravity of the
offences charged against the Appellant, the ends of justice require
that we should direct that he should be tried for the said offences de
novo according to law. We also direct that the proceedings to be
taken against the Appellant hereafter should be commenced without
delay and should be disposed as expeditiously as possible.”
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CRL. APPEAL NOS. 119-122 OF 2017
16. In Zahira Habibulla H. Sheikh and Anr. vs. State of Gujarat and Ors.
(2004) 4 SCC 158, [ Best Bakery case ] being an extraordinary case, the
Supreme Court was convinced that the witnesses were threatened to keep
themselves away from the Court and in such facts and circumstances of
the case, not only the Court directed a ‘ de novo’ trial but made further
direction for appointment of the new prosecutor and retrial was directed to
be held out of the State of Gujarat. The law laid down in Best Bakery case
for retrial was in the extraordinary circumstances and cannot be applied for
all cases.
17. After considering the question a “speedy trial” and “fair trial” to a
person accused of a crime and after referring to a catena of decisions and
observing that guiding factor for retrial must always be demand of justice,
in Mohd. Hussain @ Julfikar Ali vs. State (Govt. of NCT of Delhi) (2012) 9
SCC 408, this Court held as under:-
“ 41. ‘Speedy trial’ and ‘fair trial’ to a person accused of a crime are
integral part of Article 21. There is, however, qualitative difference
between the right to speedy trial and the accused’s right of fair trial.
Unlike the accused’s right of fair trial, deprivation of the right to
speedy trial does not per se prejudice the accused in defending
himself. The right to speedy trial is in its very nature relative. It
depends upon diverse circumstances. Each case of delay in
conclusion of a criminal trial has to be seen in the facts and
circumstances of such case. Mere lapse of several years since the
commencement of prosecution by itself may not justify the
discontinuance of prosecution or dismissal of indictment. The
factors concerning the accused’s right to speedy trial have to be
weighed vis-à-vis the impact of the crime on society and the
confidence of the people in judicial system. Speedy trial secures
rights to an accused but it does not preclude the rights of public
justice. The nature and gravity of crime, persons involved, social
impact and societal needs must be weighed along with the right of
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CRL. APPEAL NOS. 119-122 OF 2017
an accused to speedy trial and if the balance tilts in favour of the
former the long delay in conclusion of criminal trial should not
operate against the continuation of prosecution and if the right of
accused in the facts and circumstances of the case and exigencies
of situation tilts the balance in his favour, the prosecution may be
brought to an end. These principles must apply as well when the
appeal court is confronted with the question whether or not retrial of
an accused should be ordered.
42. The appellate court hearing a criminal appeal from a judgment of
conviction has power to order the retrial of the accused under
Section 386 of the Code. That is clear from the bare language of
Section 386(b). Though such power exists, it should not be
exercised in a routine manner. A ‘de novo trial’ or retrial is not the
second trial; it is continuation of the same trial and same
prosecution. The guiding factor for retrial must always be demand
of justice. Obviously, the exercise of power of retrial under Section
386(b) of the Code, will depend on the facts and circumstances of
each case for which no strait jacket formula can be formulated but
the appeal court must closely keep in view that while protecting the
right of an accused to fair trial and due process, the people who
seek protection of law do not lose hope in legal system and the
interests of the society are not altogether overlooked.”
18. As discussed earlier, the High Court has not shown as to how the
alleged lapses pointed out by the High Court have resulted in miscarriage
of justice. When the accused prefers an appeal against their conviction
and sentence, the appellate court is duty bound to consider the evidence
on record and independently arrive at a conclusion. In our considered
view, the High Court erred in remitting the matter back to the trial court for
fresh trial and the impugned order cannot be sustained.
19. In the result, the impugned judgment of the High Court is set aside
and these appeals are allowed. The matter is remitted back to the High
Court for consideration of the matter afresh. The High Court shall afford
sufficient opportunity to the accused-appellants and the prosecution and
also to the informant Asim Kumar Chatarjee-brother of the deceased (in
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CRL. APPEAL NOS. 119-122 OF 2017
terms of Section 301 Cr.P.C.) and proceed with the matter afresh in
accordance with law. We make it clear that we have not expressed any
opinion on the merits of the matter.
...………………………. J.
[DIPAK MISRA]
.………………………..J.
[R. BANUMATHI]
New Delhi;
January 31, 2017
12
ITEM NO.1A COURT NO.2 SECTION IIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 119-122/2017
AJAY KR. GHOSHAL ETC Appellant(s)
VERSUS
STATE OF BIHAR Respondent(s)
Date : 31/01/2017 These appeals were called on for judgment today.
For Appellant(s) Mr. Smarhar Singh, AOR
Ms. Kusum Pandey, Adv.
For Respondent(s) Mr. Gopal Singh, AOR
Ms. Vimla Sinha, Adv.
Mr. Manish Kumar, Adv.
Mr. Rituraj Biswas, Adv.
Mr. Shivam Singh, Adv.
Mr. Aditya Raina, Adv.
Mr. Shreyas Jain, Adv.
Ms. Varsha Poddar, Adv.
Mr. Kumar Milind, Adv.
Mr. Advitiya Awasth, Adv.
Mr. Vikram Singh, Adv.
Hon'ble Mrs. Justice R. Banumathi has pronounced the judgment
of the Bench consisting of Hon'ble Mr. Justice Dipak Misra and Her
Ladyship.
T he impugned judgment of the High Court is set aside and the
appeals are allowed in terms of the signed reportable judgment.
The matter is remitted back to the High Court for consideration of
the matter afresh. The High Court shall afford sufficient
opportunity to the accused-appellants and the prosecution and also
to the informant Asim Kumar Chatarjee-brother of the deceased (in
terms of Section 301 Cr.P.C.) and proceed with the matter afresh
in accordance with law. We make it clear that we have not
expressed any opinion on the merits of the matter.
(Gulshan Kumar Arora) (H.S. Parasher)
Court Master Court Master
(Signed reportable judgment is placed on the file)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 119-122 OF 2017
AJAY KUMAR GHOSHAL ETC. …Appellant
Versus
STATE OF BIHAR & ANR. ...Respondent
J U D G M E N T
R. BANUMATHI, J.
These appeals are directed against the common final order dated
28.08.2015 passed by the High Court of Judicature at Patna in Criminal
Appeal (SJ) No.230 of 2015, Criminal Appeal (SJ) No.275 of 2015,
Criminal Appeal (SJ) No.232 of 2015 and Criminal Appeal (SJ) No.243 of
2015 setting aside the judgment of the trial court and directing the retrial of
Session Trial No.14 of 2008/637 of 2008 against the appellants.
2. Briefly stated, case of the prosecution is that on 15.05.2007, Asim
Kumar Chatarjee (PW-5) filed a complaint before the Officer-in-Charge,
Tilakmanjhi, stating that his sister Bandhavi @ Bani Ghoshal was married
to Raj Kumar son of Ajay Kumar Ghoshal on 03.02.2007 and at the time of
her marriage, the complainant gave cash and ornaments as per his
capacity and all the usual gifts given in a marriage to the
accused-appellants. PW-5 asserted that the husband, father-in-law and
mother-in-law (Munmun Ghoshal) kept demanding dowry from his
1
CRL. APPEAL NOS. 119-122 OF 2017
deceased sister and upon his inability to fulfill their demands, they in turn
tortured Bandhavi Ghoshal mentally and physically. The complainant
stated that on 15.05.2007, he received information from Bhagalpur about
the death of his sister deceased Bandhavi @ Bani Ghoshal in her
matrimonial home, in suspicious circumstances and he went to Bhagalpur.
The complainant stated that he saw the dead body of his sister and noticed
that her wrist veins were cut and her body had the marks of hanging,
assault and electrocution. On the basis of aforesaid, FIR was registered
under Section 304 (B), Section 34 IPC at Kotwali (Tilkamanjhi) P.S. Case
No.281 of 2007. After completion of investigation, the charge-sheet was
filed against the appellants under Sections 302, 304B, 201, 498A, 120B
IPC and Sections 3 and 4 of Dowry Prohibition Act.
3. In order to prove guilt of the accused, the prosecution has examined
twelve witnesses and exhibited documents and material objects. Upon
consideration of evidence, the trial court vide judgment dated 06.04.2015,
held that the prosecution has proved the guilt of the accused beyond
reasonable doubt and convicted all the appellants/accused persons, by
judgment dated 09.04.2015. For conviction under Section 304B read with
Section 120B IPC, the trial court imposed sentence of imprisonment for ten
years on each of the appellants. The appellants were convicted under
Section 201 IPC and were sentenced to undergo rigorous imprisonment for
five years as well as fine of Rs.10,000/- each with default sentence and
2
CRL. APPEAL NOS. 119-122 OF 2017
rigorous imprisonment for two years for the conviction under Section 4 of
Dowry Prohibition Act.
4. Being aggrieved by the verdict of conviction and the sentence
imposed upon them, the appellants/accused preferred separate appeals
before the High Court. Upon consideration of the contentions of the
parties, the High Court in paras (29) and (30) of its judgment pointed out
certain lapses on the part of Investigating Officer/trial court and held that
the trial court failed to take appropriate action on the lapses. After quoting
relevant extracts from the judgments in Mina Lalita Baruwa vs. State of
Orissa and Ors. (2013) 16 SCC 173 and Nar Singh vs. State of Haryana
(2015) 1 SCC 496, the High Court set aside the judgment of the conviction
and sentence recorded by the trial court and the matter was remitted back
to the trial court to proceed afresh in accordance with law. Being
aggrieved, the accused-appellants have preferred these appeals.
5. Learned counsel for the appellants submitted that the High Court
being the First Appellate Court should have appreciated the evidence on
its own merits; instead it erred in remitting the matter back to the trial court
to proceed afresh and the order for de novo trial would cause serious
prejudice to the accused-appellants.
6. We have heard the learned counsel for the State as well as counsel
for the complainant i.e. brother of the deceased Asim Kumar Chatarjee.
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CRL. APPEAL NOS. 119-122 OF 2017
Both of them submitted that the evidence available on record is sufficient to
sustain the conviction of the accused-appellants.
7. We have carefully considered the rival contentions and perused the
impugned order and other materials on record. The question falling for
consideration is whether there was serious irregularities in the prosecution
case thereby necessitating retrial and whether the irregularities pointed out
by the High Court are such as resulting in miscarriage of justice thereby
constraining the High Court to set aside the judgment of the Sessions
Court and direct for retrial.
8. In para (29) of its judgment, the High Court pointed out certain
lapses; but has not stated as to how such alleged lapses has resulted in
miscarriage of justice necessitating retrial. Certain lapses either in the
investigation or in the ‘conduct of trial’ are not sufficient to direct retrial. The
High Court being the First Appellate Court is duty bound to examine the
evidence and arrive at an independent finding based on appraisal of such
evidence and examine whether such lapses actually affect the prosecution
case; or such lapses have actually resulted in failure of justice. The
circumstances that should exist for warranting retrial must be such that
whether the trial was undertaken by the court having no jurisdiction or trial
was vitiated by serious illegality or irregularity on account of misconception
of nature of proceedings or that irregularity has resulted in miscarriage of
justice.
4
CRL. APPEAL NOS. 119-122 OF 2017
9. The High Court copiously extracted the judgment in case of Nar
Singh vs. State of Haryana ( 2015) 1 SCC 496 to remit the matter to the trial
court for proceeding afresh. In Nar Singh’s case , some of the important
questions like Ballistic Report and certain other incriminating evidence
were not put to the accused and the same was not raised in the trial court
or in the High Court. It was felt that the accused should have been
questioned on those incriminating evidence and circumstances; or
otherwise prejudice would be caused to the accused. In such peculiar
facts and circumstances, Nar Singh’s case was remitted to the trial court
for proceeding afresh from the stage of Section 313 Cr.P.C. Be it noted
that in Nar Singh’s case , this Court has referred to a catena of other
judgments holding that omission to put certain questions to the accused
under Section 313 Cr.P.C. would not cause prejudice to the accused. It
depends upon facts and circumstances of each case and the nature of
prejudice caused to the accused. In our view, the High Court has not
properly appreciated Nar Singh’s case where this Court laid down that the
appellate court can order for fresh trial from the stage of examination under
Section 313 Cr.P.C., only in cases where failure to question the accused
on certain incriminating evidence has resulted in serious prejudice to the
accused. The High Court, in our view, has not properly appreciated the
ratio laid down in Nar Singh’s case and erred in applying the same to the
present case.
5
CRL. APPEAL NOS. 119-122 OF 2017
10. Section 386 Cr.P.C. deals with the powers of the appellate court. As
per Section 386 (b) Cr.P.C, in an appeal from a conviction, the appellate
court may:- (i) reverse the finding and sentence and acquit or discharge
the accused, or order him to be re-tried by a Court of competent
jurisdiction subordinate to such Appellate Court or committed for trial, or (ii)
alter the finding, maintaining the sentence, or (iii) with or without altering
the finding, alter the nature or the extent, or the nature and extent, of the
sentence, but not so as to enhance the same.
11. Though the word “retrial” is used under Section 386(b)(i) Cr.P.C., the
powers conferred by this clause is to be exercised only in exceptional
cases, where the appellate court is satisfied that the omission or
irregularity has occasioned in failure of justice. The circumstances that
should exist for warranting a retrial must be such that where the trial was
undertaken by the Court having no jurisdiction, or trial was vitiated by
serious illegality or irregularity on account of the misconception of nature of
proceedings. An order for retrial may be passed in cases where the
original trial has not been satisfactory for some particular reasons such as
wrong admission or wrong rejection of evidences or the Court refused to
hear certain witnesses who were supposed to be heard.
12. ‘ De novo’ trial means a “new trial” ordered by an appellate court in
exceptional cases when the original trial failed to make a determination in
a manner dictated by law. The trial is conducted afresh by the court as if
6
CRL. APPEAL NOS. 119-122 OF 2017
there had not been a trial in first instance. Undoubtedly, the appellate court
has power to direct the lower court to hold ‘ de novo’ trial. But the question
is when such power should be exercised. As stated in Pandit Ukha Kolhe
vs. State of Maharashtra (1964) SCR 926, the Court held that:
“ An order for retrial of a criminal case is made in exceptional cases,
and not unless the appellate court is satisfied that the Court trying
the proceeding had no jurisdiction to try it or that the trial was
vitiated by serious illegalities or irregularities or on account of
misconception of the nature of the proceedings and on that account
in substance there had been no real trial or that the Prosecutor or an
accused was, for reasons over which he had no control, prevented
from leading or tendering evidence material to the charge, and in the
interests of justice the appellate Court deems it appropriate, having
regard to the circumstances of the case, that the accused should be
put on his trial again. An order of re-trial wipes out from the record
the earlier proceeding, and exposes the person accused to another
trial which affords the prosecutor an opportunity to rectify the
infirmities disclosed in the earlier trial, and will not ordinarily be
countenanced when it is made merely to enable the prosecutor to
lead evidence which he could but has not cared to lead either on
account of insufficient appreciation of the nature of the case or for
other reasons.”
13. This Court, while dealing with the question whether the High Court
should have quashed the trial proceedings only on account of declaration
of the legal position made by the Supreme Court concerning the
procedural aspect about the cases involving offences under the SC/ST Act,
this Court stated, “a de novo trial should be the last resort and that too only
when such a course becomes so desperately indispensable; it should be
limited to the extreme exigency to avert ‘a failure of justice’. Observing
that any omission or even the illegality in the procedure which does not
affect the core of the case is not a ground for ordering a de novo trial”. In
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CRL. APPEAL NOS. 119-122 OF 2017
State of M.P. vs. Bhooraji and Ors. (2001) 7 SCC 679, the Court went on to
say further as follows:
“ 8….This is because the appellate court has plenary powers for
revaluating and reappraising the evidence and even to take
additional evidence by the appellate court itself or to direct such
additional evidence to be collected by the trial court. But to replay
the whole laborious exercise after erasing the bulky records relating
to the earlier proceedings, by bringing down all the persons to the
court once again for repeating the whole depositions would be a
sheer waste of time, energy and costs unless there is miscarriage of
justice otherwise. Hence, the said course can be resorted to when it
becomes unpreventable for the purpose of averting “a failure of
justice”. The superior court which orders a de novo trial cannot
afford to overlook the realities and the serious impact on the
pending cases in trial courts which are crammed with dockets, and
how much that order would inflict hardship on many innocent
persons who once took all the trouble to reach the court and
deposed their versions in the very same case. To them and the
public the re-enactment of the whole labour might give the
impression that law is more pedantic than pragmatic. Law is not an
instrument to be used for inflicting sufferings on the people but for
the process of justice dispensation.”
14. In Bhooraji’ s case , the Court referred to Chapter XXXV of the Code
and, particularly, Sections 461, 462 and 465 (1). After noticing the above
provisions, the Court observed in paragraphs (15) and (16) of the order as
follows:
“ 15. A reading of the section makes it clear that the error, omission
or irregularity in the proceedings held before or during the trial or in
any enquiry were reckoned by the legislature as possible
occurrences in criminal courts. Yet the legislature disfavoured axing
down the proceedings or to direct repetition of the whole
proceedings afresh. Hence, the legislature imposed a prohibition
that unless such error, omission or irregularity has occasioned “a
failure of justice” the superior court shall not quash the proceedings
merely on the ground of such error, omission or irregularity.
16. What is meant by a failure of justice occasioned on account of
such error, omission or irregularity? This Court has observed
in Shamnsaheb M. Multtani vs. State of Karnataka {2001 (2) SCC
577} thus:
“ 23. We often hear about failure of justice and quite
often the submission in a criminal court is accentuated
with the said expression. Perhaps it is too pliable or
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CRL. APPEAL NOS. 119-122 OF 2017
facile an expression which could be fitted in any
situation of a case. The expression failure of justice
would appear, sometimes, as an etymological
chameleon (the simile is borrowed from Lord Diplock
in Town Investments Ltd. v. Deptt. of the Environment,
1977 (1) All E.R. 813). The criminal court, particularly
the superior court should make a close examination to
ascertain whether there was really a failure of justice
or whether it is only a camouflage.”
15. In Gopi Chand vs. Delhi Administration AIR 1959 SC 609, a
Constitution Bench of this Court was concerned with the criminal appeals
wherein plea of the validity of the trial and of the orders of conviction and
sentence was raised by the appellant. That was a case where the
appellant was charged for three offences which were required to be tried
as a warrant case by following the procedure prescribed in the Code of
Criminal Procedure, 1860 but he was tried under the procedure prescribed
for the trial of a summons case. The procedure for summons case and
warrants case was materially different. The Constitution Bench held that
having regard to the nature of the charges framed and the character and
volume of evidence led, the appellant was prejudiced; accordingly, set
aside the orders of conviction and sentence and the Constitution Bench
held as under:-
“ 29. ….the offences with which the Appellant stands charged are of
a very serious nature; and though it is true that he has had to
undergo the ordeal of a trial and has suffered rigorous imprisonment
for some time that would not justify his prayer that we should not
order his retrial. In our opinion, having regard to the gravity of the
offences charged against the Appellant, the ends of justice require
that we should direct that he should be tried for the said offences de
novo according to law. We also direct that the proceedings to be
taken against the Appellant hereafter should be commenced without
delay and should be disposed as expeditiously as possible.”
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CRL. APPEAL NOS. 119-122 OF 2017
16. In Zahira Habibulla H. Sheikh and Anr. vs. State of Gujarat and Ors.
(2004) 4 SCC 158, [ Best Bakery case ] being an extraordinary case, the
Supreme Court was convinced that the witnesses were threatened to keep
themselves away from the Court and in such facts and circumstances of
the case, not only the Court directed a ‘ de novo’ trial but made further
direction for appointment of the new prosecutor and retrial was directed to
be held out of the State of Gujarat. The law laid down in Best Bakery case
for retrial was in the extraordinary circumstances and cannot be applied for
all cases.
17. After considering the question a “speedy trial” and “fair trial” to a
person accused of a crime and after referring to a catena of decisions and
observing that guiding factor for retrial must always be demand of justice,
in Mohd. Hussain @ Julfikar Ali vs. State (Govt. of NCT of Delhi) (2012) 9
SCC 408, this Court held as under:-
“ 41. ‘Speedy trial’ and ‘fair trial’ to a person accused of a crime are
integral part of Article 21. There is, however, qualitative difference
between the right to speedy trial and the accused’s right of fair trial.
Unlike the accused’s right of fair trial, deprivation of the right to
speedy trial does not per se prejudice the accused in defending
himself. The right to speedy trial is in its very nature relative. It
depends upon diverse circumstances. Each case of delay in
conclusion of a criminal trial has to be seen in the facts and
circumstances of such case. Mere lapse of several years since the
commencement of prosecution by itself may not justify the
discontinuance of prosecution or dismissal of indictment. The
factors concerning the accused’s right to speedy trial have to be
weighed vis-à-vis the impact of the crime on society and the
confidence of the people in judicial system. Speedy trial secures
rights to an accused but it does not preclude the rights of public
justice. The nature and gravity of crime, persons involved, social
impact and societal needs must be weighed along with the right of
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CRL. APPEAL NOS. 119-122 OF 2017
an accused to speedy trial and if the balance tilts in favour of the
former the long delay in conclusion of criminal trial should not
operate against the continuation of prosecution and if the right of
accused in the facts and circumstances of the case and exigencies
of situation tilts the balance in his favour, the prosecution may be
brought to an end. These principles must apply as well when the
appeal court is confronted with the question whether or not retrial of
an accused should be ordered.
42. The appellate court hearing a criminal appeal from a judgment of
conviction has power to order the retrial of the accused under
Section 386 of the Code. That is clear from the bare language of
Section 386(b). Though such power exists, it should not be
exercised in a routine manner. A ‘de novo trial’ or retrial is not the
second trial; it is continuation of the same trial and same
prosecution. The guiding factor for retrial must always be demand
of justice. Obviously, the exercise of power of retrial under Section
386(b) of the Code, will depend on the facts and circumstances of
each case for which no strait jacket formula can be formulated but
the appeal court must closely keep in view that while protecting the
right of an accused to fair trial and due process, the people who
seek protection of law do not lose hope in legal system and the
interests of the society are not altogether overlooked.”
18. As discussed earlier, the High Court has not shown as to how the
alleged lapses pointed out by the High Court have resulted in miscarriage
of justice. When the accused prefers an appeal against their conviction
and sentence, the appellate court is duty bound to consider the evidence
on record and independently arrive at a conclusion. In our considered
view, the High Court erred in remitting the matter back to the trial court for
fresh trial and the impugned order cannot be sustained.
19. In the result, the impugned judgment of the High Court is set aside
and these appeals are allowed. The matter is remitted back to the High
Court for consideration of the matter afresh. The High Court shall afford
sufficient opportunity to the accused-appellants and the prosecution and
also to the informant Asim Kumar Chatarjee-brother of the deceased (in
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CRL. APPEAL NOS. 119-122 OF 2017
terms of Section 301 Cr.P.C.) and proceed with the matter afresh in
accordance with law. We make it clear that we have not expressed any
opinion on the merits of the matter.
...………………………. J.
[DIPAK MISRA]
.………………………..J.
[R. BANUMATHI]
New Delhi;
January 31, 2017
12
ITEM NO.1A COURT NO.2 SECTION IIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 119-122/2017
AJAY KR. GHOSHAL ETC Appellant(s)
VERSUS
STATE OF BIHAR Respondent(s)
Date : 31/01/2017 These appeals were called on for judgment today.
For Appellant(s) Mr. Smarhar Singh, AOR
Ms. Kusum Pandey, Adv.
For Respondent(s) Mr. Gopal Singh, AOR
Ms. Vimla Sinha, Adv.
Mr. Manish Kumar, Adv.
Mr. Rituraj Biswas, Adv.
Mr. Shivam Singh, Adv.
Mr. Aditya Raina, Adv.
Mr. Shreyas Jain, Adv.
Ms. Varsha Poddar, Adv.
Mr. Kumar Milind, Adv.
Mr. Advitiya Awasth, Adv.
Mr. Vikram Singh, Adv.
Hon'ble Mrs. Justice R. Banumathi has pronounced the judgment
of the Bench consisting of Hon'ble Mr. Justice Dipak Misra and Her
Ladyship.
T he impugned judgment of the High Court is set aside and the
appeals are allowed in terms of the signed reportable judgment.
The matter is remitted back to the High Court for consideration of
the matter afresh. The High Court shall afford sufficient
opportunity to the accused-appellants and the prosecution and also
to the informant Asim Kumar Chatarjee-brother of the deceased (in
terms of Section 301 Cr.P.C.) and proceed with the matter afresh
in accordance with law. We make it clear that we have not
expressed any opinion on the merits of the matter.
(Gulshan Kumar Arora) (H.S. Parasher)
Court Master Court Master
(Signed reportable judgment is placed on the file)
