Power of Appellate Court: The Appellate Court can direct for retrial only in exceptional nature which is intended to prevent miscarriage of justice - [read judgment]
The accused should be able to demonstrate that separate trials on two different FIRs led to miscarriage of justice : Supreme Court.
The three Judge Bench of the Supreme Court of India declined the decision of the high court of Punjab and Haryana which had passed an order of remission of conviction and sentence of the accused and acquittal of the appellant to the trial court and ordered a retrial after 7 years from the date of alleged offence and directed the high court to restore the entire appeals that were filed by the accused against the conviction and sentence, for disposal on merit.
The Supreme Court accordingly allowed the appeal of the appellant
against the decision of the high court for joint trial and retrial of the trial
which he is acquitted reasoning that the retrial would be a matter of serious
prejudice to the appellant and holding separate trials was not contrary to law
and that there was no resultant failure of justice demonstrated to the
satisfaction of the High Court.
Inspector in charge of
a police station (Nasib Singh) is the
appellant in the case. Feeling aggrieved
with the impugned judgment and order of the high court where the high court
remitted the case for retrial of the case of he was acquitted by Additional
Sessions Judge, on the ground that there was nothing on record to prove that he
had conducted a tainted investigation.
The allegation made
against the appellant was that he had made a tainted investigation in the rape
case so as to help the accused and he had abetted the commission of suicide by
the deceased/prosecutrix. The trial court while acquitting the appellant found
that:
(i) The appellant’s name is
not mentioned in the suicide note;
(ii) The
original suicide note which was taken into possession by PW 22 (investigating Officer)
had not been tampered with by the appellant and PW 22 had admitted during his
cross-examination that the preliminary investigation conducted by the appellant
had been adopted by him during further investigation; and
(iii) Surjit
Kaur-PW12, Harmeet Kaur-PW2 and PW21 had not made any allegation during the
course of their evidence against the appellant but on the contrary had stated
that he had conducted a proper investigation.
The
trial court came to the conclusion that there was an absence of evidence on
record to demonstrate that the appellant committed any offence under Sections
306, 217 and 218 of the Indian Penal Code.
It may be important to
note here that the present appeal is the
result of the appeal filed by the
prosecutrix’s mother before the high court against the acquittal of the
appellant, wherein the High Court had directed to the trial court for retrial under Section 386 with joint trial under Section 223
The high court had passed an impugned judgment and order for
remission of conviction and sentence of the accused and acquittal of the
appellant to the trial court and directed that two FIRs be clubbed and tried together
by taking the provision of Section 223 of Code of Criminal Procedure,, 1973
with the following observation:-
1. Most of the witnesses in the proceedings
arising out of the different FIRs are common. They are just numbered differently.
2. The evidence in one FIR was produced
during the trials in another FIR.
3. Both the offences arising out of the
two FIR are connected with each other. And serious prejudice would be caused if
two separate trials are held. The evidence in both the FIRs will have to be
scanned together.
Further the
high court in regard to retrial of the appellant who was acquitted the court
observed that:-
“We are conscious of the fact that
one of the alleged accused Nasib Singh who was tried together with the
appellants during trial in both the FIRs was acquitted by the trial Court in
2014. Thus, he had earned a right and we should be slow in disturbing the same.
But when the entire scenario is taken into consideration and is viewed from the
angle of failure of justice then this Court is of the considered opinion that
to maintain the balance and delivery of justice, these cases should be remanded
back for retrial.”
The case in
question involve serious offence of gang
rape having been committed on the victim which ultimately resulted in her
suicide.
1. Therefore
question which came up for consideration in the appeal is whether holding
separate trials arising out of two FIRs warrants the direction of the high
court for a de novo trial.
2. Whether
the non-joinder of the trials in two different FIR has caused a miscarriage of
justice, prejudicing the rights of the accused-respondents or the case of the
prosecution such that it necessitated the order of the high court directing a
retrial.
In regard 1st
issue put forth in the present case concerning the power of the appellate court
to direct for de novo trial, the Hon’ble Supreme Court reiterated principles formulated by the
Constitution Bench in Ukha Kohle vs. State of Maharashtra (1964) 1
SCR 926, that a retrial would not be ordered unless the Appellate Court
is not satisfied that:
(i) The court trying the
proceeding had no jurisdiction;
(ii) The trial was vitiated
by serious illegalities and irregularities or on account of a misconception of
the nature of the proceedings as a result of which no real trial was conducted;
or
(iii) The prosecutor or an
accused was for reasons beyond their control prevented from leading or
tendering evidence material to the charge and that in the interest of justice,
the Appellate Court considers it appropriate to order a retrial.
The court also
relied on significance decisions held in the case of State of M.P vs. Bhooraji (2001)
7 SCC 679 and case of Gangula
Ashok vs. State of A.P (2000) 2 SCC 504, which stated that the
Appellate Court can send the case for retrial only when there is a failure of
justice and the court must be conscious of the huge pendency of cases in the
trial court.
The Supreme Court
also took notice of the decision held in the cases of Zahira Habibulla Sheikh
vs. State of Gujarat (2004) 4 SCC 158 ( Best Bakery Case) and Mohd. Hussain vs.
State (Government of NCT of Delhi) 2012 (9) SCC 408, that the power to direct
for retrial or de novo trial must be exercised by the appellate Court in
exceptional situations.
As for the 2nd
issue of joint trial, the court reiterated the decision held in the case of Chandra
Bhai vs. The State of UP 1971 (3) SCC
983, the court laid down three significant principles on joint trials:
(i) A separate trial is not contrary to
law even if a joint trial for the offences along with other offences is
permissible;
(ii)
The possibility of a joint trial
has to be decided at the beginning of the trial and not on the basis of the
result of the trial; and
(iii)
The true test is whether any
prejudice has been sustained as a result of a separate trial. In other words, a
retrial with a direction of a joint trial would be ordered only if there is a
failure of justice.
Further the court emphasised on the decision held in the case
of Essar
Teleholding Limited vs. Central Bureau of Investigation (2015) 10 SCC 562
concerning conduct of joint trial under Section 223 Cr.PC. The court held that the joint trial may not
be desirous if it would (i) prolong the
trial, (ii) cause unnecessary wastage of judicial time; and (iii) confuse or
cause prejudice to the accused who had taken part only in some minor offence.
FACTS:
The fact of
the case is that the prosecutrix was gang raped in semi conscious state after
forcible administration of intoxicant, by three accused persons. The prosecutrix got
her statement recorded with Sub Inspector Nasib Singh on the basis of which FIR
was lodged of the Offence under Sections
363, 366A, 376, 328 and 34 of the
Indian Penal Code.
The prosecutrix
committed suicide leaving behind a suicide note naming the three accused to be
responsible for her decision to end her life. An FIR was lodged, on the
statement of prosecutrix’s cousin, under
Section 306/34 against the three accused and the appellant was also implicated
following the addition of offences under Section 217, 218 and 120-B of IPC.
The
appellant was acquitted by the Additional Sessions Judge but convicted the
three accused for rigorous imprisonment for life under the Sections above mentioned.
The
appellant’s acquittal was challenged by the victim/prosecutrix’s mother and the
three convicted accused also filed appeal against the conviction in the high
court.
On the
appeal by respective parties, the high court remitted the judgments of
conviction and acquittal of the Additional Sessions Judge in the trials arising
out of two FIRs and directed that trials be clubbed and tried together as
provided under section 223, Cr.PC for retrial under Section 386.
Hence appeal
came into being in the Supreme Court for consideration pertaining to retrial or
de novo trial and joint trial.
Case: Nasib Singh
vs. The State of Punjab & Anr. ( Criminal Appeal nos. 1051-1054 of 2021
with Criminal Appeal nos. 1055-1059 of 2021)
Coram: Justice
Dr. Dhananjaya Y Chandrachud
Justice Vikram
Nath
Justice B.Nagarathna
DOJ: 8.10.2021.
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