AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APEAL NO.357 OF 2005 WITH CRIMINAL APPLICATION NO.104 OF 2010 Akalesh Kumar @ Mithun Sharad Mishra ... Appellant Vs. The State of Maharashtra. ... Respondents Ms. Indrayani M. Koparkar for the appellant. Ms. S.D. Shinde, A.P.P. for the State. CORAM: MRS. RANJANA DESAI & MRS. MRIDULA BHATKAR, JJ. DATED : 11TH MARCH, 2010. ORAL JUDGMENT :- (Per Smt. Ranjana Desai, J.) 1. The appellant was tried in the Court of Sessions for Greater Bombay in Sessions Case No.417 of 1996 with Sessions Case No.699 of 1996 along with one Mukesh Mousami Sevakram Choudhari for offences punishable under Sections 120-B read with Section 302 of the Indian AJN 2 Penal Code (for short, “the IPC”) and in the alternative under Section 302 read with Section 34 of the IPC. The appellant is original accused 2. 2. The case of the prosecution is that the complainant Sunil, two witnesses by name Santosh and Hasan together with deceased Aziz and number of other people were residing at Girgaon Chowpaty. At the material time, complainant – Sunil was residing in a temporary shed with his wife and son. Santosh, Hasan and deceased Aziz were residing in an open space. The incident took place on 11/1/1996 at about 6.00 a.m. According to the prosecution, at about 5.30 a.m., complainant – Sunil got up after hearing the cries of his son. He came out of the hut. He went to the public latrine. At that time, he heard the cries of deceased Aziz. He saw the appellant stabbing deceased Aziz with knife. Complainant - Sunil proceeded to the spot. The appellant threatened complainant - Sunil with dire consequences by wielding the knife at him. Thereafter, the appellant left the place. By then, AJN 3 witnesses Santosh and Hasan, who were sleeping by the side of deceased Aziz had got up. They claimed to have seen the entire incident. They could not rescue deceased Aziz as the appellant was threatening them. The appellant managed to make his escape good. 3. According to the prosecution, the motive for committing the offence was that deceased Aziz was engaged to a girl – Sunanda, who was the sister-in-law of accused 1 - Mukesh and that was not approved by accused 1 – Mukesh. Therefore, accused 1 – Mukesh along with the appellant conspired to commit murder of deceased Aziz. Injured Aziz was taken to the Nair Hospital where he succumbed to his injuries. PW-5 PSI Patil, who was attached to D.B. Marg Police Station received information about the incident. He along with his staff went to the Nair Hospital. He recorded the statement of complainant - Sunil. Offence came to be registered and investigation of the case started. After completion of the investigation, the appellant came to be charged as AJN 4 aforestated. 4. At the trial, the prosecution adduced evidence of six witnesses. Out of the six witnesses, three witnesses PW-1 Santosh, PW-3 Hasan and complainant - PW-4 Sunil are the eye-witnesses. The appellant pleaded not guilty to the charge. After perusing the record, learned Sessions Judge acquitted accused 1 of the offences punishable under Section 120-B read with Section 302 of the IPC. He, however, convicted the appellant for offence punishable under Section 302 of the IPC and sentenced him to suffer rigorous imprisonment for life and to pay a fine of Rs.100/- and in default, to suffer further rigorous imprisonment for one month. This judgment, as we have already stated, was delivered on 24/9/1998. Though the appellant was convicted on 24/9/1998, he filed appeal through jail only on 27/1/2005. We asked learned A.P.P. Ms. Shinde to let us know whether the accused was informed that he has a right to appeal against the order of conviction and sentence. She produced in the court xerox copy of the AJN 5 history card of the appellant maintained by Yerawada Central Prison. The said card contains endorsement dated 27/9/1998 to the effect that appeal shall be filed from inside. It is also noted in the said card that the appellant asked for a copy of the judgment of the trial court. The appellant appears to have signed along side the said endorsement. This indicates that the appellant wanted a copy of the judgment and he wanted to prefer an appeal through jail. Thus, this is not a case where the appellant was not aware that he had a right to file an appeal. He was very much aware of his right and he had asked for a copy of the judgment. The history card also indicates that on 13/7/1999, the appellant was again asked whether he wants to prefer an appeal and he had told the jail authorities that he is going to prefer an appeal through jail. However, the appellant did not file appeal till 27/1/2005. In this case, for the delay in filing the appeal, the appellant is responsible and not the prison authorities. 5. The appeal was admitted by this court on 7/7/2006 AJN 6 after condoning delay. The bail application was rejected on 10/1/2007. We are informed that the appellant is in jail for 13 years and 5 months. 6. This appeal appeared before the Division Bench of this court to which one of us (Smt. Ranjana Desai, J.) was a party on 20/8/2008. Statement was made before this court by counsel for the appellant and learned A.P.P. that the entire record has been destroyed and it was not possible for the court to proceed with the hearing of the appeal. In the light of the judgment of the Supreme Court in State of U.P. v. Abhai Raj Singh & Anr. (2004) 4 SCC 6, this court directed the State to reconstruct the appeal paper-book. This court directed that if reconstruction is not possible, affidavit be filed by an officer, on oath. This appeal again appeared on board on 26/8/2008. Learned A.P.P. made a statement that the proceedings were with the Sessions Court, Mumbai and it is only the Sessions Court, Mumbai, which can state whether the proceedings can be reconstructed or not. AJN 7 Therefore, the Division Bench directed the Registrar, Sessions Court, Mumbai to submit a report as to whether the proceedings can be reconstructed or not and, if yes, within how much time, they can be reconstructed. The Registrar addressed letter dated 1/9/2008 to the Assistant Registrar of this court stating that a letter was addressed to the Public Prosecutor for Greater Mumbai and the defence advocate to find out whether the papers and records are available for preparation of paper-book. Since, the Registrar was waiting for reply from the defence advocate and public prosecutor, the appeal was adjourned to 11/9/2008. Report dated 10/9/2008 was sent by the Registrar, Sessions Court, Mumbai to this court. The report stated that it was not possible to reconstruct the papers on account of non-availability of case papers. Therefore, in the light of the judgment of the Supreme Court in Abhai Raj Singh, the Division Bench directed learned A.P.P. to inform the court as to whether a retrial can be conducted or not. Affidavit has been filed by Mr. Vinod Pandurang Sawant, Police Inspector attached to AJN 8 D.B. Marg Police Station. In this affidavit, Mr. Sawant has stated that on the basis of the report of the Registrar, Civil & Sessions Court for Greater Mumbai, the record and the muddemal articles were destroyed because the appeal was not filed within the time limit. Mr. Sawant has stated that as per the direction of this court, he took search from the police station but only one file could be found having copy of the postmortem report and certain statements of witnesses recorded under Section 161 of Code of Criminal Procedure (for short, “the Code”). Mr. Sawant has further stated that from the file, it is evident that statements of 13 witnesses were recorded. He, therefore, gave notice to the witnesses. He verified as to whether the witnesses are available by sending constable to their available addresses. The constable visited the address of complainant - Sunil. He found that complainant – Sunil was not residing there. He had sold the premises to a person by name Asgar Shaikh. The whereabouts of complainant – Sunil are not known. Mr. Sawant has further stated that out of the 13 witnesses, three AJN 9 witnesses are available and four witnesses have expired and six witnesses are not found at their known addresses as they are residents of zopadpatti areas. In view of this, Mr. Sawant has stated that retrial is not possible. We have perused the relevant station diary entries and we find that genuine efforts have been made by the D.B. Marg Police Station to trace the witnesses so that retrial can be conducted. However, the efforts did not yield any positive result. Today, therefore, the situation is that records and proceedings have been destroyed. Reconstruction of record is not possible. Retrial is not possible. Affidavit is filed by the officer of the D.B. Marg Police Station which had investigated the crime to the above effect. The question is what course should be adopted in such a situation. 7. In this connection, we may usefully refer to the judgment of the Supreme Court in Abhay Raj Singh. Facts, which were before the Supreme Court were not identical but the principles laid down by the Supreme AJN 10 Court could be applied to the present case. In that case, the accused were tried for commission of offence punishable under Section 302 read with Section 34 of the IPC. They were found guilty, convicted and sentenced to life imprisonment. Against that judgment and order dated 23/6/1979 passed by the Sessions Court, two appeals came to be filed. After admission of the appeals, Registry of the High Court sent for the records from the trial court. By letter dated 27/6/1984, officer-in-charge (Record Room), Judges Court, Bareilly informed the High Court that the records of the case were not available having been destroyed in the fire that broke out in the night between 18/11/1979 and 19/11/1979. Nothing was done thereafter. The Registry did not place the matter before the appropriate Bench of the High Court. By order dated 1/11/1993 i.e. more than nine years after the letter was received from the trial court, three months' time was allowed to the Sessions Court for reconstruction of the record. It appears that the High Court acquitted the accused on 25/2/1994 observing that no communication AJN 11 had been received about the reconstruction of the record, and inference was therefore drawn that it was not possible for the Sessions Judge to reconstruct the record. 8. The Supreme Court did not approve of the course adopted by the High Court. The Supreme Court observed that the High Court came to the abrupt conclusion that reconstruction was not possible merely because there was no response from the Sessions Judge. The High Court did not require the Sessions Court to furnish the information about reconstruction of records and/or itself take initiative by issuing positive directions as to the manner, method and nature of attempts, efforts and exercise to be undertaken to effectively achieve the purpose in the best interests of justice and to avoid ultimately any miscarriage of justice resulting from any lapse, inaction or inappropriate or perfunctory action, in this regard. The Supreme Court observed that the approach adopted by the High Court, if approved, would encourage dubious persons and detractors of justice by allowing undeserved AJN 12 premium to violators of law by acting hand in glove with those anti-social elements coming to hold sway, behind the screen, in the ordinary and normal course of justice. The Supreme Court then analyzed the relevant provisions of the Code. It referred to Sections 385 and 386 of the Code. Section 385 lays down the procedure for hearing appeals not dismissed summarily. Section 386 lays down powers of the appellate court. The Supreme Court observed that while dealing with an appeal from a conviction, the appellate court is empowered to reverse the findings and sentence or acquit the accused. The appellate court is also empowered to discharge the accused. A finding on merits after consideration of the materials on record is imperative. The Supreme Court observed that where that is not possible, because of destruction of records, the proper course for the appellate court would be to direct retrial after reconstruction of the records. The Supreme Court further observed that if reconstruction and retrial are not possible due to loss of vitally important basic records, it is only in such situation, AJN 13 the accused can be acquitted. Since, the High Court had not given any positive direction to reconstruct the record, the Supreme Court set aside the High Court's order and directed that the High Court shall direct reconstruction of the records within a period of six months from the date of receipt of the judgment of the Supreme Court from all available or possible sources with the assistance of the prosecuting agency and their respective counsel. The Supreme Court observed that if it is possible to have the records reconstructed to enable the High Court itself to hear and dispose of the appeals in the manner envisaged under Section 386 of the Code, it should rehear the appeals and dispose of the same on their own merits. The Supreme Court further directed that if the High Court finds that reconstruction is not practicable but by ordering retrial interest of justice could be better served, it should adopt that course and direct retrial and from that stage law shall take its normal course. The Supreme Court further observed that if only, reconstruction is not possible to facilitate the High Court to hear and dispose of the AJN 14 appeals and the further course of retrial and fresh adjudication by the Sessions Court is also rendered impossible due to loss of vitally important basic records in that situation, the order passed by the High Court shall operate i.e. the accused shall stand acquitted. 9. In this case, as we have already noted, the records are destroyed and it is reiterated by the Registrar of the Sessions Court that reconstruction of the record is not possible. The defence counsel and public prosecutor have been contacted for reconstruction of the record. However, they have expressed inability to help in the process of reconstruction of the record. Mr. Sawant, the Police Inspector attached to D.B. Marg Police Station has stated in his affidavit that record is not available at the police station. He has also stated that retrial is not possible because witnesses are not available. The only course possible for us in the light of Abhai Raj Singh is to acquit the appellant. AJN 15 10. Though in this case, we may have to adopt the course of acquitting the appellant, we are conscious of the fact that such orders are likely to be misused. It is possible for a person who is involved in a gross case of murder and who has least chance of success, not to file appeal for a long period and then after destruction of record, come to this court and pray that he may be acquitted. As per Chapter XV of the Bombay High Court Appellate Side Rules, 1960, papers which are required to be preserved permanently shall be classified “A” and kept in File “A”. Papers, which are required to be preserved for 30 years shall be classified “B” and kept in File “B”. Papers which are required to be preserved for 5 years shall be classified “C” and kept in File “C” and papers which are required to be preserved for one year are classified as “D” and kept in File “D”. 11. Article 227 of the Constitution of India provides for High Court's power of superintendence over all courts throughout the territories in relation to which it exercises AJN 16 jurisdiction. Clause (2)(b) of Article 227 empowers the High Court to make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts. Proviso to clause (3) of Article 227 mandates that such rules made, forms prescribed or tables settled under clause (2) or clause (3) shall require the previous approval of the Governor. Accordingly, this court has framed rules and incorporated them in the Bombay High Court Criminal Manual. 12. As per Chapter XX, Part I of the Bombay High Court Criminal Manual, papers marked in File “C” are papers which have a bearing on the merits of the case, but which are not to be preserved for a long time, such as depositions, documents produced in evidence which are not required to be returned to the parties, confessions, statements of the accused, etc. Therefore, after five years, the Bombay High Court Criminal Manual requires destruction thereof. The record of the present case is destroyed in view of this provision. AJN 17 13. In this case, the appeal is filed through jail. The accused comes from a poor strata of society. Therefore, though he was informed about his right to appeal and he appears to have not filed appeal for a period of five years, in the circumstances of the case, that fact cannot be taken against him. We are unable to read any malafides or motive in his action. It is pertinent to note that delay in filing the appeal has been condoned by this court. Once the delay is condoned, the appellant is within his right to request this court to give him a hearing and this court must give him a hearing. Admission of his appeal has created an expectation in the appellant that this court will hear him. Today, because of the destruction of record, as per rules, this court is unable to give him hearing by reconstructing the record nor is this court able to order a retrial. Therefore, in the facts of this case, it is not possible to deny the appellant the benefit of the authoritative pronouncement of the Supreme Court judgment in Abhai Raj Singh. The appellant will have to AJN 18 be acquitted. Similar course has been adopted by the Division Bench of this court (Bilal Nazki & A.A. Kumbhakoni, JJ.) in Vilas Nivruti Ahire v. The State of Maharashtra in Criminal Appeal No.588 of 2000 delivered on 25/9/2008. 14. We must, however, at the cost of repetition, sound a note of caution that each such case will have to be examined on its own merits considering the possibility of the accused misusing the approach adopted by the courts. One needs to have a fresh look at the relevant provisions of the Bombay High Court Criminal Manual, which provide for destruction of records. It needs to be considered whether period for destruction of record listed in File “C” of the Bombay High Court Criminal Manual should be extended. Whether any changes are needed in Chapter XV of the Bombay High Court Appellate Side Rules, 1960 may also have to be considered. It is pertinent to note that in Vilas Ahire, the Division Bench of this court had directed the Registrar (Judicial I) to bring AJN 19 such cases to the notice of learned Chief Justice so that a policy is framed and the depositions in criminal cases are not destroyed. The Division Bench has also expressed that if it is not possible to physically preserve all depositions in the form of a hard copy, they could always be transferred into a soft copy, with a certificate of the concerned Judge that they are true versions of the original depositions, so that in cases like this, the court does not have the difficulty of deciding the appeals. We are not aware whether the Registrar (Judicial I) has brought this observation of the Division Bench to the notice of Hon'ble the Chief Justice. We, therefore, direct the Registrar (Judicial I) to place a copy of the present judgment along with a copy of the judgment dated 25/9/2008 passed in Criminal Appeal No.588 of 2000 before Hon'ble the Chief Justice for appropriate orders. We concur with the Division Bench headed by Justice Bilal Nazki that records in criminal cases need to be preserved by modern methods , so that the right of hearing cannot be denied to the accused because of destruction of record. We would AJN 20 like to add that if it is decided to preserve record by preparing soft copies, it can be easily done by using the scanner. 15. In the circumstances, in the peculiar facts and circumstances of the case, without making it as a precedent, we quash and set aside judgment and order dated 24/9/1998 passed by the Additional Sessions Judge, Sessions Court for Greater Mumbai in Sessions Case No. 417 of 1996 and Sessions Case No.699 of 1996 and direct the appellant – Akalesh Kumar @ Mithun Sharad Mishra be released forthwith unless he is required in any other case. The Criminal appeal is disposed of. 16. In view of the disposal of the appeal, criminal application does not survive and is disposed of as such. 17. This judgment may be communicated to the appellant in jail. AJN 21 18. We direct that all District Judges should ensure that there should be a periodical survey in all jails to find out whether the accused are informed about their right of appeal and whether proper legal aid is provided to them. If an accused does not wish to prefer appeal, entry may be made in the jail record to that effect and the signature or thump impression of the accused be obtained thereon. Copy of this judgment be sent to all the District and Sessions Judges in the State of Maharashtra and also to the Superintendent of Prisons in all jails in the State of Maharashtra. [MRS. RANJANA DESAI, J.] [MRS. MRIDULA BHATKAR, J.]