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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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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

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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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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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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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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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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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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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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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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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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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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

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