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CASE NO.:

Appeal (crl.) 1331 of 2004

PETITIONER:

Satyajit Banerjee and others

RESPONDENT:

State of West Bengal and others

DATE OF JUDGMENT: 23/11/2004

BENCH:

Y K. SABHARWAL & D.M. DHARMADHIKARI

JUDGMENT:

J U D G M E N T

(@ out of Special Leave Petition (Crl.) No. 676 of 2003)

Dharmadhikari J.

Leave to appeal, as prayed for, is granted.

Counsel for the parties are heard at length.

The appellants are accused of commission of offence of alleged

cruel treatment meted out to deceased \026 Kana Banerjee, punishable

under Section 498A of the Indian Penal Code and abetting her suicidal

death punishable under Section 306, IPC.

On the evidence produced by the prosecution, the trial court

acquitted them. But in revision, preferred by mother of the deceased,

the High Court by the impugned order has set aside the acquittal and

directed a de novo trial.

The necessary facts leading to the trial and eventual remand by the

High Court for fresh trial are as under:

Appellant No.1 was married to the deceased in the year 1990.

She was employed in Railways and was regularly attending to her

duties. Her parents also lived not far away from her matrimonial home.

On 25.10.1995 she was found dead. The accused-husband had

informed her parents of her death. It is the case of her mother that

soon after the incident, a First Information Report was lodged with the

police alleging harassment and cruel treatment to her by the accused.

The said FIR has not been produced. The FIR which was produced was

lodged on 22.12.1995 which led to the prosecution, and acquittal of the

accused by the trial court.

In the course of investigation a suicide note was seized from the

mother-in-law of the deceased. The contents of the suicide note read

that the deceased had developed illicit relationship with some other

person and it was no longer possible for her to deceive her husband. It

was further written in the suicide note that she was lucky to get such a

husband and her father should treat him well and arrange for his

second marriage after her death.

In his post-mortem report the Autopsy Surgeon opined that the

cause of death was poisoning and also hanging as ligature marks were

found on her neck.

The prosecution examined mother of the deceased as PW8and

three other witnesses living in the neighbourhood. The mother in her

deposition stated that in her frequent visits to the house of the accused

the deceased used to complain about her physical and mental torture

by the accused but had asked her mother not to disclose this fact to her

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father who was a heart-patient. The mother also deposed that the

deceased was medically examined by Doctor Baidyanath Chakroborty

who had opined that there was no possibility of her bearing child in her

womb and she should opt for test tube baby. She further deposed that

after one and a half years of her marriage, the deceased did conceive

but in the fallopian tube and that conception was terminated in a

hospital at Aliduar. The allegation of the mother is that for the

aforesaid reason, the accused got annoyed and increased their torture

on her. She stated that immediately after her daughter's death, an FIR

was lodged by father of the deceased and subsequently she also lodged

an FIR in writing. The delay in second FIR was explained saying that for

a few months she was mentally disturbed. In the cross-examination

she admitted to have derived knowledge that her daughter had left a

suicide note containing the writings abovementioned. When cross-

examined she did not dispute that the suicide note was not in the

writing of the deceased. The other three witnesses PW2, PW3 and PW4

examined by the prosecution to prove the alleged cruel treatment of the

deceased by the accused did not support the prosecution case and were

declared hostile. The opinion of the hand-writing expert, on the suicide

note, was filed but he was not examined in proof of his opinion.

The trial court, by appreciating and weighing the evidence on

record did not accept the case of the prosecution. The First Information

Report alleged to have been lodged soon after the incident was not

proved. The second FIR was lodged after a delay of two months. There

was no convincing explanation for the same. The learned trial judge

observed that conduct of mother of the deceased showed that she had

tried to develop the prosecution case by introducing new stories step-

by-step. The trial judge has also observed thus:

"This suicidal note has come from the side of

prosecution and as such, this Court cannot rule

out the contents of the same. Taking together

the contents of suicidal note and belated FIR I

have reasons to hold that this FIR was lodged

after two months by some wrong advice.

Moreover, the explanation given in the FIR does

not appear to be convincing. It is the settled

principle that there is every possibility of

concoction, embellishment, motivation in a

belated FIR I have already observed that PW 8

has tried to develop the prosecution case by

introducing some new stories which is far away

from the prosecution case and, as such, she

cannot be considered to be faithful witness.

Moreover she has failed to explain by convincing

reason about inordinate delay in lodging the FIR.

Her evidence has not been corroborated by a

single prosecution witness even."

On the medical evidence, the trial court observes thus:

"That the Autopsy Surgeon had recorded that there

was a ligature mark on her neck and the cause of

death was indosulfan-poison in her body."

On the evidence produced, the trial court has recorded his

conclusion that evidence of cruel treatment to the deceased is not

reliable and the accused cannot be held guilty of the suicidal death.

The trial acquitted all of them.

The mother of the deceased preferred a revision to the High Court.

The High Court did take note of the various infirmities in the

prosecution case, such as seizure of suicide note by the investigating

agency 125 days after the incident, non-examination of Hand-Writing

Expert, belated FIR and single testimony of the mother of the deceased

on the allegation of cruelty. The High Court also took note of the fact

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that the post-mortem reported presence of ligature mark on the neck of

the deceased indicating hanging. Presence of poison in the body was

also found. Even after noticing the above serious infirmities in the

prosecution case, the High Court observes:

"The learned trial court ought to have been more,

without meaning any disrespect, dynamic and to

have taken active truth instead of resigning to the

fate as ordained by the prosecution."

The High Court then went on to observe that where prosecution

lacks in bringing necessary evidence, the trial court ought to have

invoked its powers under Section 311 of the Cr.P.C. and summoned for

examining the father of deceased and other additional witnesses whom

it considered necessary. The High Court by observing thus set aside

the order of acquittal passed by the trial court and directed remand of

the case 'for fresh decision from stage one.' In the concluding part of

the its judgement, the High Court made the following observation:

"Lest it may even unconsciously influence the mind of the learned trial

court, while on remand it is made absolutely clear that by way of guiding

formula the observations here-in-above have been made but it cannot be

said to have a binding effect on the learned trial court which would be

free to arrive at its independent conclusion in accordance with law and in

the suggested formula here-in-above."

[Emphasis supplied]

Learned counsel appearing for the accused assails the order of

remand made by the High Court and the above mentioned observations

made therein. It is submitted that sub-section (3) of Section 401

prohibits the High Court in its revisional jurisdiction to convert

acquittal into conviction. By directing examination of additional

witnesses under Section 311 and making observations mentioned

above it has indirectly suggested the trial court to record a conviction

on retrial.

Strong exception has been taken on behalf of the accused to the

course adopted by the High Court of directing a retrial. Reliance has

been placed on K.Chinnaswamy Reddy vs. State of Andhra

Pradesh [1963 (3) SCR 412 at 413] and particularly on the following

observations mentioned therein on the scope of identical provisions of

revision in the old Code of Criminal Procedure.

"That it was open to a High Court in revision and at the

instance of a private party to set aside an order of

acquittal though the State might not have appealed.

But such jurisdiction should be exercised only in

exceptional cases, as where a glaring defect in the

procedure or a manifest error of law leading to a

flagrant miscarriage of justice has taken place. When

Section 439(4) of the Code forbids the High Court from

converting a finding of acquittal into one of conviction, it

is not proper that the High Court should do the same

indirectly by ordering a retrial. It was not possible to lay

down the criteria for by which to judge such exceptional

cases. It was, however, clear that the High Court would

be justified in interfering in cases such as (1) where the

trial court had wrongly shut out evidence sought to be

adduced by the prosecution (2) where the appeal court

had wrongly held evidence admitted by the trial court to

be inadmissible (3) where material evidence has been

overlooked either by the trial court or the court of

appeal or, (4) where the acquittal was based on a

compounding of the offence not permitted by law and

cases similar to the above."

It is further argued for the accused that merely because a

different view of the evidence is possible, the High Court, in exercise

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of revisional powers ought not to have directed a retrial. Reliance is

placed on Bansi Lal vs. Laxman Singh [1986 (3) SCC 444].

Lastly, it is submitted on behalf of the accused that direction of

the High Court to the trial court to record further evidence and take a

'fresh decision from stage one' is totally without jurisdiction as it

suggests that the evidence already recorded in the initial trial should be

given no consideration.

On the other side learned counsel appearing for the respondent-

complainant made streneous efforts to support the impugned order for

retrial passed by the High Court. It is submitted that prosecution has

left lacunae in the case which should not go in favour of the accused.

Reliance is placed on Ram Bihari Yadav vs. State of Bihar [1998 (4) SCC

517].

On behalf of the complainant very strong reliance has been placed

on the landmark decision of this Court in the case of Zahira Habibulla

Sheikh vs. State of Gujarat [2004 (4) SCC 158] which arise from

mass killings during Gujarat riots, commonly known to the public as

"Best Bakery Case." It is submitted that the above decision of this

Court fully supports the course adopted by the High Court in remanding

the case for retrial. It is also submitted that where prosecution has left

an inherent weakness in the case, it was not only expected but

incumbent on the trial judge to invoke his power under Section 311

Cr.P.C. and summon all relevant witnesses and evidence. As the trial

court failed to discharge its duty to hold a fair trial to discover the truth,

the High Court was fully justified in directing a retrial and 'a fresh

decision from stage one.'

In the course of hearing of this case, we are informed that before

this Court stayed operation of the impugned judgment, the retrial as

directed by the High Court had already commenced. The trial judge

has recorded the statement of father of the deceased and only

remaining part of the evidence is to be recorded.

In exercise of the discretionary jurisdiction under Article 136 of

the Constitution and keeping in view the stage of retrial we refrain from

upsetting the whole judgment of the High Court. We however consider

it necessary to set right some of the uncalled for observations made by

the High Court in the impugned judgment directing retrial.

The cases cited by the learned counsel show the settled legal

position that the revisional jurisdiction, at the instance of the

complainant, has to be exercised by the High Court only in very

exceptional cases where the High Court finds defect of procedure or

manifest error of law resulting in flagrant miscarriage of justice.

The State has chosen not to prefer any appeal against acquittal.

In the present appeal by the complainant it has filed a counter-affidavit

and tried to support the order of remand passed by the High Court.

Without going into the correctness of all the observations made

by the High Court in the impugned judgment, we find it necessary to

clarify that the High Court ought not to have directed the trial court to

hold a de novo trial and take decision on the basis of so called

'suggested formula.' The High Court in its concluding part of the

judgment does state that any observation in its judgment should not

influence the mind of the trial court but, at the same time, the High

Court directs the trial court to take 'a fresh decision from stage one' and

on the basis of the 'suggested formula.' Learned counsel for the

accused is justified in his grievance and apprehension that the aforesaid

observations and directions are likely to be mistaken by the trial court

as if there is a mandate to it to record the verdict of conviction against

the accused regardless of the worth and weight of the evidence before

it.

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Since strong reliance has been placed on the Best Bakery Case

(Gujarat Riots Case- supra) it is necessary to record a note of

caution. That was an extraordinary case in which this Court was

convinced that the entire prosecution machinery was trying to shield the

accused i.e. the rioters. It was also found that the entire trial was a

farce. The witnesses were terrified and intimidated to keep them away

from the court. It is in the aforesaid extraordinary circumstances that

the court not only directed a de novo trial of the whole case but made

further directions for appointment of the new prosecutor with due

consultation of the victims. Retrial was directed to be held out of the

State of Gujarat.

The law laid down in the 'Best Bakery Case' in the aforesaid

extraordinary circumstances, cannot be applied to all cases against the

established principles of criminal jurisprudence. Direction for retrial

should not be made in all or every case where acquittal of accused is for

want of adequate or reliable evidence. In Best Bakery case, the first

trial was found to be a farce and is described as 'mock trial.' Therefore,

the direction for retrial was in fact, for a real trial. Such extraordinary

situation alone can justify the directions as made by this Court in the

Best Bakery Case(supra).

So far as the position of law is concerned we are very clear that

even if a retrial is directed in exercise of revisional powers by the HIgh

Court, the evidence already recorded at the initial trial cannot be erased

or wiped out from the record of the case. The trial judge has to decide

the case on the basis of the evidence already on record and the

additional evidence which would be recorded on retrial.

With the above clarification, we decline to interfere in the order of

remand. To put the matter beyond any shadow of doubt we further

clarify and reiterate that the trial judge, after retrial, shall take a

decision on the basis of the entire evidence on record and strictly in

accordance with law, without in any manner, being influenced or

inhibited by anything said on the evidence in the judgment of the High

Court or this Court.