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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 Page No. 1 of 12

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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 Page No. 11 of 12

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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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