What is Trial De Novo? How the power is exercised by appellate court to direct trial de novo?

 What is trial de novo?

The word de novo is derived from the Latin word which means ‘afresh’ or ‘new trial’. It is usually ordered by the appellate court when the original trial fails to make a determination  in a manner dictate by law.

            It is held on appeal, where the appellate court orders for fresh trial as if no trial had been held considering the new evidence rather than  reviewing the lower’s court decision for correctness.

 

POWER TO DIRECT RETRIAL 

Appellate Court’s  Power to direct Trial de novo or ‘retrial’ is provided  in Section 386 (b) (i) of the code of criminal procedure  which also mean ‘real trial’. The section lays down the power of the appellate court in an appeal from conviction. The appellate court in exceptional and rare cases has the power to 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.

 

Section 386 of the Cr.PC defines the powers of the Appellate Court to direct retrial and is extracted below:

“386. Power of the Appellate Court. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-

(a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

 

(b) in an appeal from a conviction-

 

(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;

 

          (c) in an appeal for enhancement of sentence-

 

(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re- tried by a Court competent to try the offence, 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, so as to enhance or reduce the same;

 

          (d) in an appeal from any other order, alter or reverse such order;

 

           (e) make any amendment or any consequential or incidental order that may be just or proper; Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.”

Trial de novo is the  last resort that the court should apply in exceptional case and only when such a course becomes desperately indispensible. Trial de novo should be limited to the extreme exigency to avert ‘a failure of justice’.  The trial de novo or retrial is not a second trial but a continuation of the same trial and same prosecution.

PRINCIPLE OF TRIAL DE NOVO (RETRIAL)

The principle of trial de novo was explained in the case of Issac vs. Ronald Cheriyan (2018) 2 SCC 278 and Mary Pappa Jebamani vs. Ganesan (2014) 14 SCC 477.  They are as under :-

 

(i) The Appellate Court may direct a retrial only in ‘exceptional’ circumstances to avert a miscarriage of justice;

(ii) Mere lapses in the investigation are not sufficient to warrant a direction for re-trial. Only if the lapses are so grave so as to prejudice the rights of the parties, can a retrial be directed;

(iii) A determination of whether a ‘shoddy’ investigation/trial has prejudiced the party, must be based on the facts of each case pursuant to a thorough reading of the evidence;

(iv) It is not sufficient if the accused/ prosecution makes a facial argument that there has been a miscarriage of justice warranting a retrial. It is incumbent on the Appellant Court directing a retrial to provide a reasoned order on the nature of the miscarriage of justice caused with reference to the evidence and investigatory process;

(v) If a matter is directed for re-trial, the evidence and record of the previous trial is completely wiped out; and

(vi) The following are some instances, not intended to be exhaustive, of when the Court could order a retrial on the ground of miscarriage of justice :

 

a) The trial court has proceeded with the trial in the absence of jurisdiction;

b) The trial has been vitiated by an illegality or irregularity based on a misconception of the nature of the proceedings; and

c) The prosecutor has been disabled or prevented from adducing evidence as regards the nature of the charge, resulting in the trial being rendered a farce, sham or charade.

 

The Supreme Court of India has time and again in various cases emphasised on the guiding factor for the trial de novo or retrial. The court says, it should depend on the facts and circumstances of each case for which no straight 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. Hence,the guiding factor for retrial or trial de novo must always be demand of justice.