Retrial may be directed in exceptional cases to avert miscarriage of justice
The accused should be able to demonstrate that separate trials on two
different FIRs led to miscarriage of justice : Supreme Court.
A 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 [Nasib Singh vs. The State of Punjab
& Anr]
FACTS OF THE CASE
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 for the 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.
ANALYSIS AND DECISION
Inspector
in charge of a police station (Nasib Singh) is the appellant in
the case. The High Court had remitted the judgment of conviction and
acquittal of the Additional Sessions Judge The High Court also directed the
trials to be clubbed and tried together as provided under Section 223 Cr.PC.
Therefore feeling
aggrieved with the impugned judgment and order of the High Court, he approached
Supreme Court on 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.
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 by the trial
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.
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.
Hence, the Apex Court in its
decision declined the observation of the High Court, on power of Appellate
Court for retrial of the trial once decided by the trial court.
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 and Justice B.Nagarathna
DOJ: 8.10.2021.
You may also read:
0 Comments