NASIB SINGH versus THE STATE OF PUNJAB & ANR.
[2021] 13 S.C.R. 566, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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[2021] 13 S.C.R. 566
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NASIB SINGH
v.
THE STATE OF PUNJAB & ANR.
(Criminal Appeal Nos. 1051-1054 of 2021)
OCTOBER 08, 2021
[DR. DHANANJAYA Y CHANDRACHUD, VIKRAM NATH
AND B.V. NAGARATHNA, JJ.]
Code of Criminal Procedure, 1973: ss. 386, 223 – Power of
appellate court to direct retrial – Scope of – Held: Appellate Court
may direct a retrial only in ‘exceptional’ circumstances to avert a
miscarriage of justice – 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, a retrial can be
directed – On facts, two FIR’s relating to the offences in the same
transaction, one arising out of the alleged gang rape of the
prosecutrix; and other arising out of the suicide of the prosecutrix
– Order by the High Court remitting the judgments of conviction
and acquittal of the Additional Sessions Judge in the trials arising
out of the two FIRs and directing that trials be clubbed and tried
together as provided u/s. 223, is a travesty of justice – With a lapse
of over 7 years since the date of the incident, a retrial would not
advance the cause of justice but would result in a serious miscarriage
of justice – Even if it is conceded that the alleged offences committed
in the two FIRs were committed in the course of the same transaction,
within the meaning of the phrase in s. 223(d), it does not warrant
the exercise of
discretion to direct a retrial followed by a joint trial
– It was imperative for the accused to prove that the separate trials
caused a miscarriage of justice – No explanation rendered on the
aspect of a miscarriage of justice – Furthermore, the holding of
separate trials was not contrary to law and that there was no resultant
failure of justice demonstrated to the satisfaction of the High Court
– Thus, the order by the High Court set aside.
Allowing the appeals, the Court
HELD: 1.1 Section 386 CrPC defines the powers of the
appellate court. Under clause (a), the appellate court is
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empowered inter alia in an appeal from an order of acquittal: to
reverse such order and direct that a further inquiry be made; or
that the accused be re-tried or committed for retrial; or find him
guilty and pass sentence on him according to law. The power of
the appellate court to order a retrial is also recognized in clause
(b)(i) in the context of an appeal from a conviction and in clause
(c)(i) in an appeal for enhancement of sentence. [Para 20][584-G;
586-A-C]
1.2 A retrial would not be ordered unless the appellate court
is satisfied that the court trying the proceeding had no jurisdiction;
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 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. An order of retrial wipes out from
the record the earlier proceeding and exposes the present
accused to another trial. It is for that reason that a retrial cannot
be ordered merely on the ground that the prosecution did not
produce proper evidence and did not know how prove their case.
[Para 22][587-E-H]
1.3 The principles emerging on retrial can be formulated
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 appellate court
directing a retrial to provide a reasoned order on the nature of
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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 Court could order a retrial on the ground of
miscarriage of justice when the trial court has proceeded with
the trial in the absence of jurisdiction; the trial has been vitiated
by an illegality or irregularity based on a misconception of the
nature of the proceedings; and 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. [Para 28][594-A-H]
1.4 The principles formulated on joint trial and separate
trials are that section 218 provides that separate trials shall be
conducted for distinct offences alleged to be committed by a
person. Sections 219 - 221 provide exceptions to this general
rule. If a person falls under these exceptions, then a joint trial for
the offences which a person is charged with may be conducted.
Similarly, under Section 223, a joint trial may be held for persons
charged with different offences if any of the clauses in the
provision are separately or on a combination satisfied. While
applying the principles enunciated in Sections 218 - 223 on
conducting joint and separate trials, the trial court should apply a
two-pronged test, namely, whether conducting a
joint/separate
trial will prejudice the defence of the accused; and/or whether
conducting a joint/separate trial would cause judicial delay. The
possibility of conducting a joint trial will have to be determined
at the beginning of the trial and not after the trial based on the
result of the trial. The appellate court may determine the validity
of the argument that there ought to have been a separate/joint
trial only based on whether the trial had prejudiced the right of
accused or the prosecutrix. Since the provisions which engraft
an exception use the phrase ‘may’ with reference to conducting
a joint trial, a separate trial is usually not contrary to law even if a
joint trial could be conducted, unless proven to cause a
miscarriage of justice. A conviction or acquittal of the accused
cannot be set aside on the mere ground that there was a possibility
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of a joint or a separate trial. To set aside the order of conviction
or acquittal, it must be proved that the rights of the parties were
prejudiced because of the joint or separate trial, as the case may
be. [Para 38][603-D-H; 604-A-B]
1.5 As regards, the judgment of the Additional Sessions
Judge in FIR 187 of 2012, the allegation against the appellant
was that that he had made a tainted investigation in the rape case
(FIR 96) so as to help the accused and had abetted the commission
of suicide by the deceased. The trial judge while acquitting the
appellant found that: the appellant’s name is not mentioned in
the suicide note; 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 PW12, 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. On appreciating the evidence, the trial judge
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 IPC. [Para 39][604-D-H;
605-A-B]
1.6 The High Court proceeded to order a retrial holding
that a separate trial in FIR 96 and FIR 187 has caused
prejudice
to both the parties in as much as they were unable to rely on the
evidence in the other case. The High Court held that the Court
has the discretion to conduct a joint trial for both the alleged
offences, namely, the gang rape of the prosecutrix and the
resultant suicide and its abetment since they are connected in
view of Section 223(d) CrPC; the prosecution and the defence
are relying on the facts and evidence of both the cases-FIR 96
and 187. But since the trials were separately held, in view of
Nathi Lal’s case, the Court was unable to refer to the evidence in
the other case. If the evidence in the trials arising out of both
FIRs is not scanned together by the court to arrive at the final
conclusion, it will lead to a failure of justice; and though the
appellant was acquitted in both FIR 96 and FIR 187, taking into
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the consideration the entire situation and ‘the angle of failure
of justice, the case must be remanded for retrial. [Para 40]
[605-B-F]
1.7 The power to order a retrial has been consistently held
to be of an exceptional nature beginning with the formulation of
the principles by the Constitution Bench in Ukha Kolhe’s case
and the resultant formulation, more recently, by the two judge
Bench in Ajay Kumar Ghoshal’s case. Directing a joint trial is not
mandatory but lies within the discretion of the Court under Section
223 of the CrPC. Clause (d) of Section 223 permits persons
accused of different offences committed in the course of the same
transaction to be charged and tried together. [Para 42][606-E-F]
Ukha Kolhe v. State of Maharashtra (1964) 1 SCR 926
– followed.
Ajay Kumar Ghoshal v. State of Bihar (2017) 12 SCC
699 : [2017] 1 SCR 469 – relied on.
1.8 The High Court was conscious of the fact that the
appellant was tried together with the other appellants during the
trials in both the FIRs in view of Section 223(a) CrPC. The
appellant was acquitted in the Sessions trial arising out of FIR 96
on 29 November 2014 and in the trial arising out of FIR 187/
2012 on 29 January 2015. Though the High Court noted that “he
had earned a right and it should be slow in disturbing the same”,
it yet remanded both the cases back for retrial “to maintain
balance and delivery of justice”. There is merit in the submission
which had
been submitted both by counsel for the appellant and
for the State of Punjab that the order of retrial wipes out the entire
record of evidence. The evidence which has been recorded during
the separate trials cannot exist for some of the accused and not
for the others. The effect of the decision of the High Court is to
relegate the appellant to a fresh trial together with the other
accused. The High Court has in fact directed that the trial would
be conducted afresh by observing that the accused be charged
together for the different offences committed by them.
[Para 45][607-F-G; 608-A-D]
1.9 The appellant has set up the plea that ordering a retrial
at this stage would be a matter of serious prejudice since crucial
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witnesses who deposed in regard to the manner in which the
investigation was conducted by the appellant have since died.
Apart from the above considerations, the High Court could not
have been oblivious of the seriousness of the alleged offences of
which the accused were charged. FIR 96 was registered on 27
November 2012 for offences punishable under Section 328, 363A,
366 and 376 read with Section 34 of the Penal Code. The appellant
was implicated on 11 January 2013 after the provisions of Sections
217, 218 and 120B were added. There was a serious allegation of
a gang rape having been committed on the prosecutrix which is
alleged to have ultimately resulted in her suicide on 26 December
2012 leading to the registration of FIR 100 under Section 306/34
IPC which was transferred to PS Samana and registered as FIR
187. The High Court by its impugned judgment remitted the
conviction and sentence of the accused and the acquittal of the
appellant to the trial court and ordered a retrial. With a lapse of
over 7 years since the date of the incident, a retrial would not
advance the cause of justice but would result in a serious
miscarriage of justice. The judgment of the High Court is a
travesty of justice. [Para 46][608-D-G; 609-A]
1.10 Even if it is conceded that the alleged offences
committed in FIR 96 and FIR 197 were committed in the course
of the same transaction, within the meaning of the phrase in
Section 223(d), in view of the interpretation in
Cheemalapati
Ganeswara Rao’s case, it does not warrant the exercise of
discretion to direct a retrial followed by a joint trial. It was
imperative for the accused-respondents to prove that the separate
trials caused a miscarriage of justice. The respondents have not
been able to demonstrate before the Court that separate trials
led to a miscarriage of justice. No explanation has been rendered
on the aspect of a miscarriage of justice. Though the High Court
has in the impugned judgment observed that the separate trials
in FIR 96 and FIR 187 led to a miscarriage of justice, no analysis
has been undertaken to explain the finding. Moreover, the High
Court has only observed that there ‘may’ be a miscarriage of
justice. Therefore, quite apart from the individual prejudice to
the appellant which has been brought out before the Court, the
holding of separate trials was not contrary to law and that there
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was no resultant failure of justice demonstrated to the satisfaction
of the High Court. [Para 47][609-B-E]
State of Andhra Pradesh v. Cheemalapati Ganeswara
Rao AIR 1963 SC 1850 : [1964] SCR 297 – relied on.
1.11 The State of Punjab is not in appeal before this Court
against the retrial which has been ordered by the High Court.
But as a matter of first principle, it is evident that even the appellant
has been able to establish that a retrial would be a matter of serious
prejudice since vital evidence which has been recorded during
the course of the trial would be obliterated as a result of the
death of the witnesses from the investigating team led by the
appellant. That apart, a retrial would not serve the ends of
ensuring that justice is done in a heinous crime alleged to have
been perpetrated on the prosecutrix resulting in her suicide.
[Para 48][609-E-F]
1.12 The impugned judgment and order of the High Court
is set aside. [Para 49][609-G]
Nathi Lal v. State of UP 1988 SC (Criminal) 638; Nathi
Lal v. State of UP (1990) Supp SCC 145; State of Andhra
Pradesh v. Cheemalapati Ganeswara Rao AIR 1963
SC 1850 : [1964] SCR 297; State of M P v. Bhooraji
(2001) 7 SCC 679 : [2001] 2 Suppl. SCR 128; Gangula
Ashok v. State of A P (2000) 2 SCC 504 : [2000] 1 SCR
468; Zahira Habibulla Sheikh v. State of Gujarat (2004)
4 SCC 158 : [2004] 3 SCR 1050; Satyajit Banerjee v.
State of West Bengal 2005 (1) SCC 115 : [2004] 6 Suppl.
SCR
294; Mohd Hussain v. State (Government of NCT
of Delhi) (2012) 9 SCC 408 : [2012] 10 SCR 480; Nar
Singh v. State of Haryana (2015) 1 SCC 496 : [2014]
12 SCR 218; Isaac v. Ronald Cheriyan (2018) 2 SCC
278 : [2018] 1 SCR 217; Mary Pappa Jebamani v.
Ganesan (2014) 14 SCC 477 : [2013] 11 SCR 1042;
R. Dineshkumar v. State (2015) 7 SCC 497 : [2015] 5
SCR 605; Chandra Bhal v. The State of UP 1971 (3)
SCC 983; Essar Teleholdings Limited v. Central Bureau
of Investigation (2015) 10 SCC 562 : [2015] 11 SCR
340 – referred to.
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Case Law Reference
(1990) Supp SCC 145
referred to
Para 18(iii)
(1964) 1 SCR 926
followed
Para 21, 42
[2001] 2 Suppl. SCR 128
referred to
Para 22
[2000] 1 SCR 468
referred to
Para 22
[2004] 3 SCR 1050
referred to
Para 23
[2004] 6 Suppl. SCR 294
referred to
Para 24
[2012] 10 SCR 480
referred to
Para 26
[2014] 12 SCR 218
referred to
Para 26
[2018] 1 SCR 217
referred to
Para 27
[2013] 11 SCR 1042
referred to
Para 27
[2015] 5 SCR 605
referred to
Para 34
1971 (3) SCC 983
referred to
Para 35
[2015] 11 SCR 340
referred to
Para 37
[2017] 1 SCR 469
relied on
Para 42
[1964] SCR 297
relied on
Para 47
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1051-1054 of 2021.
From the Judgment and Order dated 20.12.2019 of the High Court
of Punjab and Haryana at Chandigarh in CRA-S-1485-SB of 2015, CRA-
S-1741-SB of 2015, CRA-S-1940-SB of 2015 and CRA-S-1599-SB of
2016.
With
Criminal Appeal Nos. 1055-1059 of 2021.
Vipin Gogia, Ms. Christi Jain, Advs. for the Appellant.
Ms. Uttara Babbar, Manan Bansal, D. Bharat Kumar, Tadimalla
Bhaskar Gowtham, Aman Shukla, Hathindra Manda, Dasari Muralee
Mohan, Gopal Jha, Dr. Nishesh Sharma, Narender Kumar Verma, Advs.
for the Respondents.
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
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The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. These appeals arise from a judgment dated 20 December 2019
of a Division Bench of the High Court of Punjab and Haryana in a batch
of nine criminal appeals. The High Court remitted the orders of acquittal
and conviction arising out of two separate FIRs for fresh trial and directed
that the proceedings arising out of both the FIRs be clubbed together
under Section 223 CrPC and be tried together by one court. The issue
that arises for consideration is whether holding separate trials arising out
of two FIRs warrants the direction of the High Court for a de novo trial.
2. The case of the prosecution is that on 13 November 2012, the
prosecutrix along with Shinderpal Kaur went to Gugga Mari near Ghaggar
river for lighting earthen lamps. While they were returning home, a car
driven by accused Gurpreet Singh alias Aman approached them.
Balwinder Singh was alleged to be sitting in the rear seat of the vehicle.
Gurpreet Singh halted the car near the prosecutrix and Shinderpal Kaur
whereupon Balwinder Singh who was known to her opened the door of
the vehicle, grabbed her and threw her on the rear seat of the vehicle.
The doors and window panes of the vehicle were closed as a result of
which the alarms raised by the prosecutrix could not be heard by the
passers-by. Shinderpal Kaur left the spot. Balwinder Singh is alleged to
have committed sexual
assault on the prosecutrix in the car after which
she was taken to the motor shed of accused Sandeep Singh. Sandeep
Singh handed over the key to Balwinder Singh after which the prosecutrix
is alleged to have been repeatedly raped by Balwinder Singh and Gurpreet
Singh in the precincts of the motor shed. The prosecutrix is alleged to
have been forcible administered an intoxicant as a result of which she
became semi-conscious. At 9.30pm, she was brought in the vehicle and
thrown near the Gurudwara of the village. The prosecutrix managed to
reach her home and narrated the incident to her mother Surjeet Kaur.
3. On 22 November 2012, the prosecutrix along with her relative,
sister and mother is alleged to have reached Police Station City Samana
from where they were directed to Police Station Ghagga.
4. On 27 November 2012, the prosecutrix got her statement
recorded with Sub-Inspector In charge Nasib Singh (the appellant) of
the Police Post at Badshahpur on the basis of which First Information
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Report1 96/20122 was registered at Police Station Ghagga, Badshahpur
under Sections 363, 366A, 376, 328 and 34 of the Indian Penal Code3.
The FIR named Balwinder Singh, Gurpreet Singh alias Aman and Sandeep
Singh as the persons who had committed acts of sexual assault on the
prosecutrix. It is alleged by the prosecution that though the appellant
received information from the prosecutrix of the alleged incident of rape,
no arrest was made and a proper investigation was not conducted.
5. On 26 December 2012, the prosecutrix committed suicide
leaving behind a suicide note naming Balwinder Singh, Gurpeet Singh
and Shinderpal Kaur to be responsible for her decision to end her life.
Immediately after the death of the prosecutrix, the appellant arrested
accused Balwinder Singh, Gurpeet Singh and Shinderpal Kaur. On the
basis of a statement made by Harvinder Kaur, a cousin of the prosecutrix,
FIR No.100/20124 dated 26 December 2012 was registered at PS Ghagga
against the appellant (SI Nasib Singh), Balwinder Singh, Gurpreet Singh
alias Aman and Shinderpal Kaur for abetting the suicide of the prosecutrix.
FIR 100 was cancelled since the suicide was committed within the
jurisdictional limits of PS Samana. On 31 December 2012, FIR No.187/
20125 was registered against Balwinder Singh, Gurpeet Singh and
Shinderpal Kaur for an offence punishable under Section 306 read with
Section 34 of the IPC at PS Samana.
6. A Special Investigating Team6 was constituted by the ADGP
(Crime) to enquire into the standard of investigation conducted by the
appellant in the gang rape case registered as FIR 96 of 2012. The SIT
concluded that the investigation conducted by the appellant in FIR 96of
2012 had loopholes. The Superintendent (Crime), Patiala who was a
member of the SIT arrested Sandeep Singh on 29 December 2012. The
appellant was dismissed from the Police Department on 27 December
2012. On appeal, the dismissal was set aside on 11 April 2014, and the
appellant was reinstated to the service.
1 "FIR”
2 "FIR 96"
3 "IPC”
4 "FIR 100"
5 "FIR 187"
6 "SIT”
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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7. On 15 January 2013,the appellant was implicated in respect of
FIR 96of 2012 concerning the gang rape of the prosecutrix and alleged
offences under Sections 217, 218 and 120B of the IPC were added. In
regard to FIR 187 of 2012 registered for the offence under Section 306/
34, the appellant was implicated following the addition of offences under
Sections 217, 218 and 120-B IPC. Charges were framed in FIR 187 of
2012 by the Additional Sessions Judge, Patiala on 5 April 2013. The
accused were charged under Section 306 IPC while the respondent in
addition was charged with Sections 217 and 218 IPC.
8. On 29 November 2014, the Additional Sessions Judge, Patiala
convicted (i) Balwinder Singh; (ii) Gurpreet Singh alias Aman;(ii)
Shinderpal Pal Kaur; and (iv) Sandeep Singh in the trial arising out of
FIR 96of 2012 for offences under Sections 376(2)(g), 366, 328 and 120B
of the IPC. A tabular statement of the conviction rendered and sentence
imposed by the Additional Sessions Judge on Balwinder Singh, Gurpreet
Singh alias Aman, Shinderpal Pal Kaur and Sandeep Singh is reproduced
below from the judgment of the Additional Sessions Judge.
Convicts Balwinder Singh and Gurpreet Singh @ Aman
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Convicts Shinderpal Kaur and Sandeep Singh (PDF Pg 587)
9. The Additional Sessions Judge, Patiala acquitted the appellant-
Nasib Singh on the ground that there was nothing on record to prove
that he had conducted a tainted investigation. The Trial Judge relied
inter alia on the depositions of DW1 and PW20 and held:
(i)
The handwriting expert (DW1) has deposed that the writings
on the Zimni Report dated 27.11.2012 do not match with
the standard writings of Nasib Singh. The prosecution has
not examined any subordinate of Nasib Singh to prove
whether the Zimni report was written under the instructions
or in the absence of instructions of the appellant; and
(ii)
PW 20, the Head Constable who was a member of the
police party that conducted the preliminary investigation
headed by Nasib Singh deposed that the appellant conducted
all the proceedings according to the rules and procedure
governing the investigation.
10. As regards the offence punishable under Section 306 read
with Section 34 in FIR 187 of 2012, the Additional Sessions Judge, Patiala
convicted the three accused but acquitted the appellant by a judgment
dated 29 January 2015. The appellant was acquitted with the following
findings:
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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(i)
There was nothing on record to show that the photo copy
of the suicide note that was handed over to him by PW2
has been tampered with. PW22 (SP Jaipal Singh) who
conducted the investigation after the appellant was removed
from the investigation deposed that the preliminary
investigation conducted by the appellant was adopted by
him during his further investigation; and
(ii)
No other witness has deposed against the manner of
investigation conducted by the appellant. For the offence
under Section 218 to be attracted, the prosecution must be
able to prove that a public servant prepared a record knowing
that it is incorrect. In the instant case, there is no evidence
to prove that the appellant had the intention to provide an
incorrect record.
11. Nine appeals were filed before the High Court. Five appeals
were filed by the accused appellants against the judgment and order
dated 29 November 2014 of the Additional Sessions Judge, Patiala in the
trial arising out of FIR 96 of 2012 under Sections 328, 363A, 366, 376
and 34 of the IPC. Similarly, appeals were also filed against the conviction
of the accused and sentence imposed on 29 January 2015 arising out of
FIR 187 of 2012 dated 31 December 2012 under Sections 306read with
34, 217, 218 and 120B of the IPC.
12. The acquittal of the appellant of offences arising out of FIR
96 and FIR 187 was also challenged by the prosecutrix’s mother in appeal
before the High Court.
The High Court disposed of all the nine appeals
by a common impugned judgment and order dated 20 December 2019.
The High Court noted that the appeals arising out of the judgments of
the Additional Sessions Judge dated 29 November 2014 and 29 January
2015 be listed together for final hearing.
13. The High Court remitted the judgments of conviction and
acquittal dated 29 November 2014 and 29 January 2015 of the Additional
Sessions Judge in the trials arising out of FIR 96 and FIR 187 and directed
that trials be clubbed and tried together as provided under Section 223
CrPC. The High Court made the following observations during the course
of its judgment to arrive at the said conclusion:
(i)
Most of the witnesses in the proceedings arising out of the
different FIRs are common. They are just numbered
differently;
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(ii)
The evidence in FIR 187 was produced during the trial in
FIR 96;
(iii)
Both the offences arising out of FIR 96 and FIR 187 are
connected with each other. Serious prejudice would be
caused if two separate trials are held. The evidence in both
the FIRs will have to be scanned together;
(iv)
The court is vested with the discretion to decide if the FIRs
must be tried together or separately. While exercising the
discretion, the court should apply the test of whether trying
the FIRs separately would lead to illegality. However, in
this case both the offences in the separate FIRs “are so
connected together as to form part of the same transaction”;
(v)
The case of the prosecution is that the prosecutrix committed
suicide because of the rape committed by the accused. In
the appeal filed by Gurpreet Singh alias Aman, an application
was filed under Section 391 of the CrPC to bring on record
additional facts to show that another person by the name of
Manpreet Singh had also attempted suicide on the same
day and at the same place as the prosecutrix and was taken
to the hospital by PW10-Harvinder Kaur, with whom the
prosecutrix was staying at the relevant time. FIR 1 dated
12 November 2013 was registered under Section 309 of
the IPC at PS SAS Nagar. Both the prosecution and defense
are relying on the facts and evidence in both the cases.
However, in view of the decision of the Supreme Court in
Nathi Lal v. State of UP7, where it was laid down that the
evidence in
one case must not influence the decision in
another case, the evidence in the other case cannot be relied
on. In order to deliver justice, the evidence and facts arising
out of both FIR 96 and FIR 187 must be tried together
under Section 223 CrPC. The High Court observed:
“This Court has also noticed that CRM-24912-2019 has
been filed by accused – appellant Gurpreet Singh @
Aman in CRA-D-385-DB-2015, under Section 391
Cr.P.C. for permission to bring on record additional facts
to show that in fact another person named Manpreet
7 1988 SC (Criminal) 638
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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Singh, had also attempted suicide on the same day at
the same place as the deceased and was taken to hospital
by PW-10 – Harwinder Kaur (with whom the deceased
was staying at that time). FIR No.1 dated 12.01.2013
under Section 309 IPC was registered at Police Station.
SAS Nagar, was registered in this regard. The learned
counsel by putting forth this evidence wanted to assert
that in fact the deceased had concocted story in the
earlier FIR and had also committed suicide due to
different reason(s).
After going through the evidence and the facts mentioned
above this Court is of the view that both the alleged
offences are connected with each other in such a way
that a serious prejudice has been caused to both
prosecution as well as defence by the separate trials in
the said cases. This Court feels that unless the evidence
of both the FIRs is scanned together by the Court to
arrive at final conclusion, it may lead to failure of justice.”
(vi)
Nasib Singh (appellant) was acquitted by the trial court in
respect of offences arising out of FIR 96 and FIR 187 and
the court must be slow to disturb it. However, because of
the apparent failure of justice, there is a necessity to remit
the case back for retrial. The High Court observed:
“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.”
(vii)
The following two cases were thus remitted:
(a)
The judgment of conviction and order of sentence
dated 29 November 2014 of the Additional Sessions
Judge, Patiala arising out of FIR No.96 dated 27
November 2012;and
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(b)
The judgment of conviction and order of sentence
dated 29 January 2015 of the Additional Sessions
Judge, Patiala arising out of FIR No.187 dated 31
December 2012.
14. Nasib Singh is in appeal before this Court.
15. Leave has been granted.
Submissions
16. Mr Vipin Gogia, Counsel appearing on behalf of the appellant
submitted that:
(i)
Both sets of judgments – the judgment dated 29 November
2014 of the Additional Sessions Judge arising from FIR 96
alleging rape and the judgment dated 29 January 2015 arising
out of FIR 187 alleging abetment of suicide were rendered
by one and the same court and by the same judge;
(ii)
The appellant was acquitted by the Additional Sessions
Judge in both the Sessions Trials and no appeal was filed
by the State against the order of acquittal;
(iii)
The appellant who had been dismissed from service was
reinstated;
(iv)
 Though Section 386(a) of the CrPC empowers the
Appellate Court in an appeal from an order of acquittal to
inter alia reverse such an order and direct that a further
enquiry be made or that the accused be retried or committed
for trial, the power to order a retrial is of an exceptional
nature and none of the well-established grounds for the
exercise of the power have been demonstrated to exist in
the present case;
(v)
The order of the High Court remitting the judgment of
conviction and sentence imposed on the accused and
directing a fresh trial has caused serious prejudice to the
appellant since the order of
acquittal in his favour has also
been set aside without any evaluation on merits and without
cause or justification;
(vi)
The judgment of the High Court would cause serious
prejudice because two crucial witnesses PW20- Head
Constable Ranja Ram and PW17-Head Constable Gurjeet
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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Singh (who were part of the investigating team with the
appellant) have died and their depositions in regard to the
nature of the investigation conducted by the appellant would
be wiped out where fresh evidence has to be adduced at
the retrial;
(vii)
During the course of the trial, PW2, PW12, PW17, PW21
and PW22 were examined and their evidence would
demonstrate that the investigation has been properly
conducted by the appellant. The benefit of the evidence
which has been recorded during the course of the earlier
trials would be totally obliterated if the case is remitted for
retrial;
(viii) The appellant is currently 65 years old. A de novo trial
could cause severe distress to him; and
(ix)
Though the acquittal of the appellant was challenged by
the mother of the prosecutrix, it is material to note that she
has been declared hostile qua the appellant in the course of
the criminal trial.
17. On the other hand Ms. Uttara Babbar, Counsel appearing on
behalf of the State of Punjab who has ably presented the case, submitted
that:
(i)
Section 218 of the CrPC postulates the general rule of
separate trials for separate offences to which inter alia
Section 223 CrPC, which provides when persons may be
charged and tried together, is an exception;
(ii)
The High Court in the present case has applied the provisions
of Section 223(d) under which persons accused of different
offences committed in the course of the same transaction
may be charged and tried together but it is important to
note the precedents of this Court which establish that:
a)
A joint trial is not peremptory but lies at the discretion
of the court;
b)
Whether a joint trial should be held must be decided
at the beginning of the trials;
c)
The power of the Appellate Court to order a re-trial
is of an exceptional nature which may be exercised
only where there is a failure of justice;
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d)
The High Court has as a matter of fact not come to
the conclusion that there would be a failure of justice
but only that there may occasion a failure of justice
if a joint trial is not ordered; and
e)
It is a settled principle of law that an order of re-trial
wipes out the evidence from the record in which
event, it cannot exist for some accused and not for
others.
(iii)
Though the State has not filed an appeal before this Court
against the judgment of the High Court nonetheless, it is
open to it to submit that the High Court has committed a
manifest error in ordering a re-trial and remitting the
conviction and sentence imposed; and
(iv)
As a result of the impugned order of the High Court, there
would be a serious miscarriage of justice since the evidence
which has been recorded in both the trials on the basis of
which the other accused-respondents were convicted of
serious offences involving a gang rape of the prosecutrix
resulting in her committing suicide would be completely
obliterated and wiped out from the record.
18. Opposing the above submissions, Mr. D Bharat Kumar, Counsel
appearing on behalf of Balwinder Singh (Respondent No.4) has urged
the following submissions:
(i)
No appeal was filed by the State before this Court against
the impugned judgment of the High Court remitting the
conviction and sentence to the trial Court for a re-trial;
(ii)
There are three FIR’s relating to the offences in the same
transaction- FIR 96/2012 arising out of
the alleged gang
rape of the prosecutrix; FIR 187/2012 arising out of the
suicide of the prosecutrix and FIR 1/2013 involving
Manpreet Singh under Section 309 of the IPC and if they
are tried separately, it will lead to a miscarriage of justice;
(iii)
In view of the decision of this Court in Nathi Lal v. State
of UP8, the evidence in one criminal trial cannot be relied
upon in a cross-case. Therefore, remitting for clubbing of
the trials is the only option that would render justice;
8 (1990) Supp SCC 145
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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(iv)
The suicide of the prosecutrix is alleged to be a consequence
of the alleged gang rape which in itself is indicative of the
fact that both the gang rape and the abetment of suicide
fall within the ambit of Section 223(d) of the CrPC, which
provides that persons may be tried jointly where different
offences are alleged to be committed by different persons
in the course of the same transaction;
(v)
The High Court has recorded in the impugned judgment
that the prosecution had sought to rely upon the evidence
which was recorded in both the cases arising out of FIRs
96 and 187;and
(vi)
The order of retrial does not cause any prejudice to the
appellant since the High Court had directed that fresh
charges should be framed. It would be open to the appellant
to pursue his remedies of seeking a discharge at that stage.
19. The representation on behalf of the other accused persons is
as follows : Dr Nishesh Sharma, learned counsel, has entered appearance
on behalf of the accused – Gurpreet Singh. Mr Narender Kumar Verma,
learned counsel, has entered appearance on behalf of the accused –
Sandeep Singh. There is no appearance on behalf of the accused –
Shinderpal Kaur, though the office report indicates that she is served.
Since Shinderpal Kaur though served has not appeared in these
proceedings, we have requested Mr D Bharat Kumar to assist the Court
as amicus curiae. The submissions which have been urged by Mr D
Bharat
Kumar would essentially cover the submissions of all the accused
– respondents on whether the High Court is justified in remitting their
conviction and sentence and ordering a re-trial.
Analysis
A. Power to Direct Retrial
20. Section 386 of the CrPC defines the powers of the Appellate
Court 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
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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.”
(emphasis supplied)
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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Under clause (a), the Appellate Court is empowered inter alia in
an appeal from an order of acquittal:
(i)
To reverse such order and direct that a further inquiry be
made; or
(ii)
That the accused be re-tried or committed for retrial; or
(iii)
Find him guilty and pass sentence on him according to law.
The power of the Appellate Court to order a retrial is also
recognized in clause (b)(i) in the context of an appeal from a conviction
and in clause (c)(i) in an appeal for enhancement of sentence.
21. The scope of the power of the Appellate Court to direct a re-
trial has come up before this Court for interpretation in several decisions.
The judgment of a Constitution Bench in Ukha Kolhe v. State of
Maharashtra9 has dealt with the issue extensively. In that case, the
appellant was tried before the Judicial Magistrate for the offence of
rash and negligent driving while under the influence of liquor thereby
causing the death of one person and injuries to four others and for
offences under the Motor Vehicles Act. The Trial Judge held that the
evidence was not sufficient to prove that the appellant was driving the
motor vehicle at the time of the mishap and acquitted him of the offences
under the Motor Vehicles Act and the Penal Code. But he held that the
evidence established that the appellant had consumed illicit liquor and
committed an offence punishable under Section 66(b) of the Bombay
Prohibition Act. The appellant
was convicted and sentenced to
imprisonment for three months and was directed to pay fine. On appeal,
the Sessions Court set aside the order of the trial court and ordered a
retrial on the ground that a “fair and full trial” had not taken place. The
revision was summarily dismissed by the High Court which led to the
appeal to this Court. Justice J.C. Shah, speaking for the Constitution
Bench observed:
“11. 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
9 (1964) 1 SCR 926
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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. [..]”
The Court held that though undoubtedly the trial before the
Magistrate suffered from irregularities and the evidence led was deficient
on important aspects; that could by itself not be a sufficient ground for
directing a retrial. If additional evidence was to be brought on the record,
a retrial was not required and the procedure prescribed by Section 428(i)
of the 1898 Code could have been resorted to.
22. The above extract emphasizes that a retrial would not be
ordered unless the Appellate Court is 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.
Another feature which emerges from the above decision is that
an order of retrial wipes out from the record the earlier proceeding and
exposes the present accused to another trial. It is for that reason that the
court has affirmed the principle that a retrial cannot be ordered merely
on the ground that the prosecution did not produce proper evidence and
did not know how prove their case.
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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22. The next decision of significance is of a two Judge Bench in
State of M P v. Bhooraji10 . In that case eleven persons were charge-
sheeted for offences including Section 302 read with Section 149 IPC
and Section 3(2) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act. The accused were convicted under
Sections 148, 323 and 302/149 IPC and sentenced to imprisonment for
life by the Additional Sessions Judge. During the pendency of the appeals
before the High Court of Madhya Pradesh, the Supreme Court held in a
decision in Gangula Ashok v. State of AP11, that committal proceedings
are necessary for a specified court under the SC/ST Act to take
cognizance of the offences to be tried. Initially in the State of Madhya
Pradesh, a Division Bench had adopted the same position in 1995. This
judgment of the Division Bench was overruled by a Full Bench in 1996.
In view of the decision of this Court in Gangula Ashok (supra), the
convicted persons moved the High Court to quash the trial on the ground
that the Court of Session had no jurisdiction to take cognizance of and
try the case in the absence of an order of committal by the Magistrate.
The High Court upheld the contention and ordered that the entire trial
must be quashed and directed retrial. The issue before this Court was
whether the High Court necessarily should have quashed the proceedings
on account of the declaration of the law by this
Court. Justice K.T.
Thomas writing for a Bench consisting of Justice K.G Balakrishnan and
himself 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. It was observed thus:
“8. …… 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”. 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. 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
10 (2001) 7 SCC 679
11 (2000) 2 SCC 504
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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.”
(emphasis supplied)
23. In Zahira Habibulla Sheikh v. State of Gujarat12, this Court
had directed the retrial of the “Best Bakery Case” where communal
riots in the State of Gujarat had led to a massacre. The trial court had
acquitted the accused and the appeal against it was dismissed by the
High Court. Along with the appeal, the High Court also dismissed the
petitions filed for adducing additional evidence and a direction seeking
retrial. Justice Ajit Pasayat writing for a two judge Bench observed this
was a fit case for directing retrial in view of the nature of additional
evidence sought to be adduced and the faulty manner in which the trial
was conducted:
“ 73. We are satisfied that it is a fit and proper case, in the
background of the nature of additional evidence sought to be
adduced and the perfunctory manner of trial conducted on the
basis of tainted investigation a retrial is a must and essentially
called for in order to save and preserve the justice-delivery system
unsullied and unscathed by vested interests. We should not be
understood to have held that whenever additional evidence is
accepted, retrial is a necessary corollary. The case on hand is
without parallel and comparison to any of the cases where even
such grievances were sought to be made. It stands on its own as
12 (2004) 4 SCC 158
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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an exemplary one, special of its kind, necessary to prevent its
recurrence. It is normally for the appellate court to decide whether
the adjudication itself by taking into account the additional evidence
would be proper or it would be appropriate to direct a fresh trial,
though, on the facts of this case, the direction for retrial becomes
inevitable.”
24. In Satyajit Banerjee v. State of West Bengal13, the trial
court acquitted the appellant who was charged with offences under
Sections 498A and 306 IPC. The High Court noted the infirmities in the
case of the prosecution such as seizure of the suicide note 125 days
later, non-examination of the handwriting expert and belated filing of the
FIR and observed that the trial court ought to have invoked its powers
under Section 311 CrPC and examined additional evidence. However, it
went on to set aside the acquittal of the appellants and directed a retrial.
On appeal, this Court did not disturb the finding of the High Court since
the trial court had already began the trial fresh. However, the Court
cautioned that the Appellate Court may direct a re-trial only in exceptional
cases. This court also distinguished the Best Bakery case and held
that that was an extraordinary case and the principles laid down in it
cannot be applied to all cases uniformly. As a matter of general rule, a
retrial cannot be directed to adduce additional evidence and correct the
faulty investigation:
“25. Since strong reliance has been placed on Best Bakery
case [(2004) 4 SCC 158 : 2004 SCC (Cri) 999] (Gujarat riots
case) it is necessary to record a note of caution. That was an
extraordinary case in which this Court was convinced that the
entire prosecution machinery was trying to shield the accused i.e.
the rioters. It was also found that the entire trial was a farce. The
witnesses were terrified and intimidated to keep them away from
the court. It is in the aforesaid extraordinary circumstances that
the court not only directed a de novo trial of the whole case but
made further directions for appointment of the new prosecutor
with due consultation of the victims. Retrial was directed to be
held out of the State of Gujarat.
26. The law laid down in Best Bakery case [(2004) 4 SCC 158 :
2004 SCC (Cri) 999] in the aforesaid extraordinary circumstances,
13 2005 (1) SCC 115
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cannot be applied to all cases against the established principles of
criminal jurisprudence. Direction for retrial should not be made in
all or every case where acquittal of accused is for want of adequate
or reliable evidence. In Best Bakery case [(2004) 4 SCC 158 :
2004 SCC (Cri) 999] the first trial was found to be a farce and is
described as “mock trial”. Therefore, the direction for retrial was
in fact, for a real trial. Such extraordinary situation alone can
justify the directions as made by this Court in Best Bakery
case [(2004) 4 SCC 158 : 2004 SCC (Cri) 999] .
27. So far as the position of law is concerned we are very clear
that even if a retrial is directed in exercise of revisional powers by
the High Court, the evidence already recorded at the initial trial
cannot be erased or wiped out from the record of the case. The
trial Judge has to decide the case on the basis of the evidence
already on record and the additional evidence which would be
recorded on retrial.”
25. A three Judge Bench of this Court in Mohd Hussain v. State
(Government of NCT of Delhi),14 dealt with the question of retrial
under Section 386 CrPC. In that case, a foreign National was subjected
to trial for causing a bomb blast in a public transport vehicle. The trial
Court convicted the accused and imposed the death sentence. On appeal,
the High Court dismissed the appeal, confirming the sentence. However,
the two judge Bench of this Court observed that the trial was vitiated.
While one of the learned judges ordered the accused person’s release,
the other ordered for a time-bound retrial. A larger Bench confirmed the
second view directing a retrial, however, observing that the power must
be exercised by the appellate Court in exceptional situations. It was
observed that keeping in view the gravity of the offence and the denial
of due process, a retrial was warranted:
“41. 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 of the
accused should be ordered by the appellate court in exceptional
and rare cases and only when in the opinion of the appellate court
14 (2012) 9 SCC 408
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
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such course becomes indispensable to avert failure of justice.
Surely this power cannot be used to allow the prosecution to
improve upon its case or fill up the lacuna. A 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 straitjacket 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.”
26. In Nar Singh v. State of Haryana15, this Court was
considering the question whether the Appellate Court can direct a retrial
if all the relevant questions are not put to the accused by the trial court
as required under Section 313 CrPC. This Court answered the question
in the affirmative, holding that the Appellate Court may direct a retrial
in such circumstances from the stage of questioning the accused
because non-compliance of Section 313 CrPC had caused prejudice
to the accused:
“30.3. If the appellate court is of the opinion that non-compliance
with the provisions of Section 313 CrPC has occasioned or is
likely to have occasioned prejudice to the
accused, the appellate
court may direct retrial from the stage of recording the
statements of the accused from the point where the irregularity
occurred, that is, from the stage of questioning the accused under
Section 313 CrPC and the trial Judge may be directed to examine
the accused afresh and defence witness, if any, and dispose of
the matter afresh.”
27. The provisions of section 386(d)(1) CrPC have come up for
consideration before a two judge Bench of this Court in Ajay Kumar
Ghoshal v. State of Bihar16 (“Ajay Kumar Ghoshal”). In that case,
the trial court convicted the accused of an offence under Section 302
and the provisions of the Dowry Prohibition Act, among others. On
15 (2015) 1 SCC 496
16 (2017) 12 SCC 699
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appeal, the High Court set aside the order of conviction and remitted
he matter to the trial court for a fresh trial, pointing out the lapses on
the part of the investigating officer and the trial court in the recording
of evidence. This Court set aside the judgment of the High Court by
distinguishing it from Nar Singh (supra) on the ground that in Nar
Singh important evidence such as the ballistic report and other
incriminating evidence was not put to the accused in the course of
recording the statement under Section 313. It was also held that it is
necessary for the High Court to explain the ‘lapses in the trial’ and
how the lapse has caused prejudice to the accused. Justice Banumathi
writing for a two Judge Bench observed:
“8. In para 29 of its judgment, the High Court pointed out certain
lapses; but has not stated as to how such alleged lapses have
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. 
11. Though the word “retrial” is used under Section 386(b)(i)
CrPC, 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.”
Explaining the concept of a de novo trial, the Court held:
“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.”
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
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This principle was reiterated in Isaac v. Ronald Cheriyan17 and
Mary Pappa Jebamani v. Ganesan18.
28. The principles that emerge from the decisions of this Court on
retrial can be formulated 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.
17 (2018) 2 SCC 278
18 (2014) 14 SCC 477
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B. Power to Direct Joint Trial
29. The question before the Court is whether the non-joinder of
the trials in FIR 96 and FIR 187 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 after clubbing the proceedings arising out of both the FIRs.
Before we refer to the judicial pronouncements on this issue, it is
necessary that we advert to the statutory provisions relating to framing
and joinder of charges.
30. Chapter 17 of the CrPC, 1973 deals with “the charge”. Part A
comprising of Sections 211 to 217 is titled “form of charges”. Part B
comprising Sections 218 to 224 is titled “joinder of charges”. Section
218 provides as follows:
“218. Separate charges for distinct offences.—(1) For every
distinct offence of which any person is accused there shall be a
separate charge, and every such charge shall be tried separately:
Provided that where the accused person, by an application in
writing, so desires and the Magistrate is of opinion that such person
is not likely to be prejudiced thereby, the Magistrate may try
together all or any number of the charges framed against such
person.
(2) Nothing in sub-section (1) shall affect the operation of the
provisions of sections 219, 220, 221 and 223.
31. Sub-section(1) of section 218 stipulates first, that there must
be a separate charge for every distinct offence of which any person
is
accused and second, that every such charge must be tried separately.
However, under the proviso, where the person accused makes a request
in writing to the Magistrate and the latter is of the opinion that such
person is not likely to be prejudiced, the Magistrate may try all or any of
the charges framed against the person together. Sub-section (2) of Section
218 stipulates that nothing in sub-section (1) would affect the operation
of the provisions of Sections 219 to 221 and 223. Section 219(1) stipulates
that when a person is accused of more than one offence of the same
kind of offences, all of which are committed within the space of twelve
months whether in respect of the same person or otherwise, he may be
charged with and tried at one trial for up to three of them. Sub-section
(2) of Section 219 provides that offences are of a same kind when they
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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are punishable with the same amount of punishment under the same
section of the IPC or of any special or local law. Section 220(1) stipulates
that if in one series of actss “so connected together as to form the same
transaction”, more than one offence is committed by the same person,
he may be tried at one trial for every such offence. Sub-section (2)
stipulates that a person maybe tried together for offence when the
situation arises where a person is charged with one or more offences of
criminal breach of trust or dishonest misappropriation of property as
provided in sub-Section(2) of Section 212 or in sub-Section (1) of Section
219, and the person is accused of committing, for the purpose of facilitating
or concealing the commission of that offence(s) one or more offences
of falsification of accounts. Sub-Section (3) of Section 220 enunciates
that if the acts alleged constitute an offence falling within two or more
separate definitions of any law in force for the time being by which
offences are defined or punished, the person accused may be charged
with and tried at one trial for each of such offences. Sub-Section(4) of
Section 220 envisages a situation where several acts of which one or
more than one, would by itself or by themselves constituent an offence,
constitute when combined a different offence; in that event, the person
accused may be charged with and tried in one trial for that offence
constituted by
such acts when combined and for any offence constituted
by any one or more of such acts. Section 222 provides that where a
person is charged with an offence consisting of several particulars, a
combination of some only of which constitutes a minor offence and such
combination is proved but the remaining particulars are not proved, he
may be convicted of the minor offence though he was not charged with
it. Sub-section(2) of Section 222 provides that when a person is charged
with an offence and facts are proved which reduce it to a minor offence,
he may be convicted of the minor offence, although he is not charged
with it.
32. Section 223 provides as follows: -
“223. What persons may be charged jointly.—The following
persons may be charged and tried together, namely:—
(a) persons accused of the same offence committed in the course
of the same transaction;
(b) persons accused of an offence and persons accused of
abetment of, or attempt to commit, such offence;
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(c) persons accused of more than one offence of the same kind,
within the meaning of section 219 committed by them jointly within
the period of twelve months;
(d) persons accused of different offences committed in the
course of the same transaction;
(e) persons accused of an offence which includes theft, extortion,
cheating, or criminal misappropriation, and persons accused of
receiving or retaining, or assisting in the disposal or concealment
of, property possession of which is alleged to have been transferred
by any such offence committed by the first-named persons, or of
abetment of or attempting to commit any such last-named offence;
(f) persons accused of offences under sections 411 and 414 of
the Indian Penal Code (45 of 1860) or either of those sections in
respect of stolen property the possession of which has been
transferred by one offence;
(g) persons accused of any offence under Chapter XII of the
Indian Penal Code (45 of 1860) relating to counterfeit coin and
persons accused of any other offence under the said Chapter
relating to the same coin, or of abetment of or attempting to commit
any such offence; and the provisions contained in the former part
of this Chapter shall, so far as may be, apply to all such charges:
Provided that where a number of persons are charged with separate
offences and such persons do not fall within any of the categories
specified in this section, the 1 [Magistrate or Court of Session]
may, if such persons by an
application in writing, so desire, and 2
[if he or it is satisfied] that such persons would not be prejudicially
affected thereby, and it is expedient so to do, try all such persons
together.
(emphasis supplied)
33. Section 223 begins with the expression “persons accused”
meaning thereby that the provision is applied when more than one person
is involved in the commission of an offence or offences. Section 223
stipulates - in clauses (a) to (g) - situations where persons may be charged
and tried together. Clause (a) envisages a situation where persons are
accused of the same offence committed in the course of the same
transaction. Clause (b) envisages a situation where persons accused of
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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an offence and persons accused of abetment or attempt to commit the
offence may be charged and tried together. Clause (c) applies to a
situation where persons are accused of more than one offence of the
same kind within the meaning of Section 219 committed by them jointly
within twelve months. Clause (d) envisages that persons accused of
different offences committed in the course of the same transaction may
be charged and tried together. Clauses (e), (f) and (g) deal with specific
situations envisaged therein. The proviso to Section 223 stipulates that
where a number of persons are charged with separate offences and
such persons do not fall within the ambit of the categories specified in
clauses (a) to (g), the Magistrate may, if such persons so desire, in writing,
and if he is satisfied that they would not be prejudicially affected, and it
is expedient to do so, try all such persons together.
34. Section 239(d) of the old Code which corresponds to Section
223(d)of the CrPC 1973 was interpreted by a three-Judge Bench of this
Court in State of Andhra Pradesh v. Cheemalapati Ganeswara Rao19
by juxtaposing the provision with Section 225(1) of the old Code, which
is Section 219(1) of CrPC 1973. In that case, two respondents along
with two others were tried together for offences under the Penal Code.
The High Court set aside the convictions on the ground that inter alia
the joint trial of two or more offences committed by
each of them is
illegal. Justice Mudholkar speaking for the Bench observed that the phrase
“offence committed in the course of the same transaction” would mean
offences that are committed in the proximity of time or place, or unity of
purpose and design :
“25. According to Mr Chari Section 235(1) cannot be construed
as having an overriding effect on Section 239 because whereas it
contemplates acts so connected together as to form the same
transaction resulting in more offences than one, Section 239(d)
contemplates offences committed in the course of the same
transaction and nothing more. The question is whether for the
purposes of Section 239(d) it is necessary to ascertain anything
more than this that the different offences were committed in the
course of the same transaction or whether it must further be
ascertained whether the acts are intrinsically connected with one
another. Under Section 235(1) what has to be ascertained is
19 AIR 1963 SC 1850
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whether the offences arise out of acts so connected together as
to form the same transaction, but the words “so connected together
as to form” are not repeated after the words “same transaction”
in Section 239. What has to be ascertained then is whether these
words are also to be read in all the clauses of Section 239 which
refer to the same transaction. Section 235(1), while providing for
the joint trial for more than one offence, indicates that there must
be connection between the acts and the transaction. According to
this provision there must thus be a connection between a series of
acts before they could be regarded as forming the same
transaction. What is meant by “same transaction” is not defined
anywhere in the Code. Indeed, it would always be difficult to
define precisely what the expression means. Whether a transaction
can be regarded as the same would necessarily depend upon the
particular facts of each case and it seems to us to be a difficult
task to undertake a definition of that which the Legislature has
deliberately left undefined. We have not come across a single
decision of any Court which has embarked upon the difficult task
of defining the expression. But it is generally thought that
where there is proximity of time or place or unity of purpose
and design or continuity of action in respect of a series of
acts, it may be possible to infer that they form part of the
same transaction. It is, however, not necessary that every one
of these
elements should co-exist for a transaction to be regarded
as the same. But if several acts committed by a person show a
unity of purpose or design that would be a, strong circumstance to
indicate that those acts form part of the same transaction. The
connection between a series of acts seems to us to be an
essential ingredient for those acts to constitute the same
transaction and, therefore, the mere absence of the words
“so connected together as to form” in clauses (a), (c) and
(d) of Section 239 would make little difference. Now a
transaction may consist of an isolated act or may consist of a
series of acts. The series of acts which constitute a transaction
must of necessity be connected with one another and if some of
them stand out independently they would not form part of the
same transaction but would constitute a different transaction or
transactions. Therefore, even if the expression “same transaction”
alone had been used in Section 235(1) it would have meant a
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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transaction consisting either of a single act or of a series of
connected acts. The expression “same transaction” occurring in
clauses (a), (c) and (d) of Section 239 as well as that occurring in
Section 235(1) ought to be given the same meaning according to
the normal rule of construction of statutes [..].”
The Bench held that holding a separate trial is the rule and a joint
trial is the exception. However, in case the accused persons commit
different offences forming a part of the same transaction, a joint trial
would be the rule unless it is proved that joint trial would cause difficulty:
“28. […] No doubt, as has been rightly pointed out in this case,
separate trial is the normal rule and joint trial is an exception. But
while this principle is easy to appreciate and follow where one
person alone is the accused and the interaction or intervention of
the acts of more persons than one does not come in, it would
where the same act is committed by several persons, be not only
inconvenient but injudicious to try all the several persons separately.
This would lead to unnecessary multiplicity of trials involving
avoidable inconvenience to the witnesses and avoidable
expenditure of public time and money. No corresponding advantage
can be gained by the accused persons by following the procedure
of separate trials. Where, however, several offences are alleged
to have been committed by several accused persons it may be
more
reasonable to follow the normal rule of separate trials. But
here, again, if those offences are alleged not to be wholly
unconnected but as forming part of the same transaction
the only consideration that will justify separate trials would
be the embarrassment or difficulty caused to the accused
persons in defending themselves.”
This Court, however, held that the High Court was wrong in setting
aside the order of conviction on the ground of misjoinder of parties. It
was observed that the court could have set aside the order of conviction
only on the ground that such misjoinder caused a failure of justice to the
accused and not merely because there is misjoinder of parties:
“31. Even if we were to assume that there has been a misjoinder
of charges in violation of the provisions of Section 233 to 239 of
the Code, the High Court was incompetent to set aside the
conviction of the respondents without coming to the definite
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conclusion that misjoinder had occasioned failure of justice. This
decision completely meets the argument based upon Dawson
case [(1960) 1 All ER 558]. Merely because the accused persons
are charged with a large number of offences and convicted at the
trial the conviction cannot be set aside by the appellate court unless
it in fact came to the conclusion that the accused persons were
embarrassed in their defence with the result that there was a
failure of justice. For all these reasons we cannot accept the
argument of learned counsel on the ground of misjoinder of charges
and multiplicity of charges.”
This interpretation placed on Section 223(d) CrPC was relied on
in a decision of this Court in R. Dineshkumar v. State20.
35. In Chandra Bhal v. The State of UP21, the appellant was
convicted of an offence under Section 302, while the two co-accused
who were charged with offences under Section 302 read with Section
34 of the Penal Code were acquitted. The conviction was affirmed by
the High Court. Before this Court, the question canvassed was that in
the incident in which the deceased was shot by the appellant, some
other persons were also shot dead and wounded. The appellant contended
that the trials for those incidents were held separately which had
prejudiced the appellant in his trial. The plea of the appellant was that
the acquittal of the appellant in those cases on the plea of self-defence
would also serve as conclusive proof of his plea of
self-defence in the
subsequent trial, and not clubbing the trial prejudiced him. While
interpreting the provisions of Section 223 of the CrPC, the Court speaking
through Justice ID Dua observed:
“5. Turning to the provisions of the Code, Section 233 embodies
the general mandatory rule providing for a separate charge for
every distinct offence and for separate trial for every such charge.
The broad object underlying the general rule seems to be to give
to the accused a notice of the precise accusation and to save him
from being embarrassed in his defence by the confusion which is
likely to result from lumping together in a single charge distinct
offences and from combining several charges at one trial. There
are, however, exceptions to this general rule and they are found in
20 (2015) 7 SCC 497
21 1971 (3) SCC 983
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
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Sections 234, 235, 236 and 239. These exceptions embrace cases
in which one trial for more than one offence is not considered
likely to embarrass or prejudice the accused in his defence. The
matter of joinder of charges is, however, in the general discretion
of the court and the principle consideration controlling the judicial
exercise of this discretion should be to avoid embarrassment to
the defence by joinder of charges. On the appellant’s argument
the only provision requiring consideration is Section 235(1) which
lays down that if in one series of acts so connected together as to
form the same transaction more offences than one are committed
by the same person then he may be charged with and tried at one
trial for every such offence. This exception like the other
exceptions merely permits a joint trial of more offences
than one. It neither renders a joint trial imperative nor does
it bar or prohibit separate trials. Sub-section (2) of Section
403 of the Code also provides that a person acquitted or convicted
of any offence may be afterwards tried for any distinct offence
for which a separate charge might have been made against him
on the former trial under Section 235(1). No legal objection to the
appellant’s separate trial is sustainable and his counsel has
advisedly not seriously pressed any before us.”
(emphasis supplied)
36. The Court observed that a separate trial on the charge of
causing the homicidal death
of one ‘L’ was not contrary to law even if a
joint trial of this offence together with others was permissible. The Court
also observed that this matter was required to be considered by the trial
court at the beginning of the trial and is not to be determined on the basis
of the result of the trial. The Court further observed that its attention
was not drawn to any material on record suggesting that prejudice had
been caused to the appellant as a result of a separate trial. It was finally
held that the plea of self defence and the argument that both the offences
were committed during the course of the same transaction was rejected
by both the courts below, and that the court would not interfere with
concurrent findings of fact. The judgment therefore lays 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;
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(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.
37. In Essar Teleholdings Limited v. Central Bureau of
Investigation22, Justice R F Nariman, speaking for a three-Judge Bench
reiterated the principles which have been enunciated in Chandra Bhal
(supra). Further, it was held that even if the conditions stipulated in Section
223 CrPC to conduct a joint trial have been fulfilled, it may not be desirous
to direct a joint trial if a joint trial 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.
38. From the decisions of this Court on joint trial and separate
trials, the following principles can be formulated:
(i)
Section 218 provides that separate trials shall be conducted
for distinct offences alleged to be committed by a person.
Sections 219- 221 provide exceptions to this general rule.
If a person falls under these exceptions, then a joint trial for
the offences which a person is charged with may be
conducted. Similarly, under Section 223, a joint trial may be
held for persons charged with different offences if any of
the clauses in the
provision are separately or on a combination
satisfied;
(ii)
While applying the principles enunciated in Sections 218-
223 on conducting joint and separate trials, the trial court
should apply a two-pronged test, namely, (i) whether
conducting a joint/separate trial will prejudice the defence
of the accused; and/or (ii) whether conducting a joint/
separate trial would cause judicial delay.
(iii)
The possibility of conducting a joint trial will have to be
determined at the beginning of the trial and not after the
22 (2015 ) 10 SCC 562
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trial based on the result of the trial. The Appellate Court
may determine the validity of the argument that there ought
to have been a separate/joint trial only based on whether
the trial had prejudiced the right of accused or the
prosecutrix;
(iv)
Since the provisions which engraft an exception use the
phrase ‘may’ with reference to conducting a joint trial, a
separate trial is usually not contrary to law even if a joint
trial could be conducted, unless proven to cause a
miscarriage of justice; and
(v)
A conviction or acquittal of the accused cannot be set aside
on the mere ground that there was a possibility of a joint or
a separate trial. To set aside the order of conviction or
acquittal, it must be proved that the rights of the parties
were prejudiced because of the joint or separate trial, as
the case may be.
39. At this stage, it would be necessary in the present case to
revisit the judgment of the Additional Sessions Judge Ranhaula dated 29
January 2015in FIR 187 of 2012. The allegation against the appellant
was that that he had made a tainted investigation in the rape case (FIR
96) so as to help the accused and had abetted the commission of suicide
by the deceased. The Trial judge 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.
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On appreciating the evidence, the trial Judge 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 Penal Code.
40. The High Court has proceeded to order a retrial holding that a
separate trial in FIR 96 and FIR 187 has caused prejudice to both the
parties in as much as they were unable to rely on the evidence in the
other case. In this context, the following conclusions were drawn by the
High Court :
(i)
The Court has the discretion to conduct a joint trial for both
the alleged offences, namely, the gang rape of the prosecutrix
and the resultant suicide and its abetment since they are
connected in view of Section 223(d) CrPC;
(ii)
The prosecution and the defence are relying on the facts
and evidence of both the cases- FIR 96 and 187. But since
the trials were separately held, in view of Nathi Lal (supra),
the Court was unable to refer to the evidence in the other
case. If the evidence in the trials arising out of both FIRs is
not scanned together by the court to arrive at the final
conclusion, it will lead to a failure of justice; and
(iii)
Though Nasib Singh (the appellant) was acquitted in both
FIR 96 and FIR 187, taking into the consideration the entire
situation and ‘the angle of failure of justice, the case must
be remanded for retrial.
41. The decision of this Court in Nathi Lal is reported as an order
which states that cross cases must
be disposed of by two separate
judgments without referring to the evidence in the other case. The order
is extracted below in its entirety:
“1. Special leave granted. Heard both the sides.
2. We think that the fair procedure to adopt in a matter like the
present where there are cross cases, is to direct that the same
learned Judge must try both the cross cases one after the other.
After the recording of evidence in one case is completed, he
must hear the arguments but he must reserve the judgment.
Thereafter he must proceed to hear the cross case and after
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recording all the evidence he must hear the arguments but reserve
the judgment in that case. The same learned Judge must
thereafter dispose of the matters by two separate judgments. In
deciding each of the cases, he can rely only on the evidence
recorded in that particular case. The evidence recorded in the
cross case cannot be looked into. Nor can the judge be influenced
by whatever is argued in the cross case. Each case must be
decided on the basis of the evidence which has been placed on
record in that particular case without being influenced in any
manner by the evidence or arguments urged in the cross case.
But both the judgments must be pronounced by the same learned
Judge one after the other.
3. We allow this appeal partly to the aforesaid extent and direct
the learned Judge to proceed with the police case and the cross
case instituted by the respondent-complainant by way of a
private complaint and hold the trial in both the matters in the
light of the directions given hereinabove. Learned Judge will
accord priority to these cross cases and dispose of both the
cases expeditiously.”
42. In deciding upon the correctness of the judgment of the High
Court in the present case, it is necessary to emphasize that the power to
order a retrial has been consistently held to be of an exceptional nature
beginning with the formulation of the principles by the Constitution Bench
in Ukha Kolhe (supra) and the resultant
formulation, more recently, by
the two judge Bench in Ajay Kumar Ghoshal (supra). Directing a joint
trial is not mandatory but lies within the discretion of the Court under
Section 223 of the CrPC. Clause (d) of Section 223 permits persons
accused of different offences committed in the course of the same
transaction to be charged and tried together. While explaining the ambit
of the corresponding provision of the Code of 1898, this Court in Chandra
Bhal (supra) has emphatically ruled that:
(i)
The statutory provision neither renders a joint trial imperative
nor does it bar or prohibit separate trials;
(ii)
The matter is required to be determined by the trial court at
the beginning of the trial and it is not to be determined on
the basis of the result of the trial; and
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(iii)
Where the issue is raised in the court of appeal, clear
prejudice must be established as having been caused as a
result of the separate trial.
43. A formulation similar to that in Chandra Bhal finds
expression in the two judge Bench decision in Bhooraji (supra) where
the Court emphasized that a de novo trial should be a matter of last
resort only when such a course of action becomes “so desperate and
indisputable”. Moreover, this Court emphasized that the Appellate Court
would do so in an extreme exigency to avert a failure of justice. While
exercising its power as a Court of appeal under Section 386 CrPC, the
Court has to be conscious of the fundamental principle that the power
to order a de novo trial or “that the accused be retried or committed
for trial” is of an exceptional nature which is intended to prevent the
miscarriage of justice. The same principle is in fact embodied in section
465(1)23 of the CrPC.
44. The effect of an order of retrial is ordinarily speaking to wipe
out the evidence recorded at the earlier stage. As Justice JC Shah,
speaking for the Constitution Bench observed “an order of retrial wipes
out from the record the earlier proceeding[…]”. This is again
reemphasized by Justice K T Thomas in Bhooraji (supra) while
cautioning against the “Replay [of] 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”. We have noted subsequent decisions which make some
departure from the ‘wiping out of the evidence recorded’ formulation to
deal with exigencies bearing on facilitating the ends of justice. We need
not dwell on them, save to have noticed them.
45. The High Court in the present case was conscious of the fact
that the appellant Nasib Singh was tried together with the other appellants
23 "465. Finding or sentence when reversible by reason of error, omission or
irregularity.—(1) Subject to the provisions hereinbefore contained, no finding, sentence
or order passed by a Court of competent jurisdiction shall be reversed or altered by a
Court of appeal, confirmation of revision on account of any error, omission or irregularity
in the complaint, summons, warrant, proclamation, order, judgment or other proceedings
before or during trial or in any inquiry or other proceedings under this Code, or any
error, or irregularity in any sanction for the prosecution, unless in the opinion of
that Court, a failure of justice has in fact been occasioned thereby.
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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during the trials in both the FIRs in view of Section 223(a) CrPC24. The
appellant was acquitted in the Sessions trial arising out of FIR 96 on 29
November 2014 and in the trial arising out of FIR 187/2012 on 29 January
2015. Though the High Court noted that “he had earned a right and we
should be slow in disturbing the same”, it yet remanded both the cases
back for retrial “to maintain balance and delivery of justice”. There is
merit in the submission which had been urged both by counsel for the
appellant and for the State of Punjab that the order of retrial wipes out
the entire record of evidence. The evidence which has been recorded
during the separate trials cannot exist for some of the accused and not
for the others. The effect of the decision of the High Court is to relegate
the appellant to a fresh trial together with the other accused. The High
Court has in fact directed that the trial would be conducted afresh by
observing that the accused be charged together for the different offences
committed by them.
46. The appellant has set up the plea that ordering are trial at this
stage would be a matter of serious prejudice since crucial witnesses
(PW20 and PW17) who deposed in regard to the manner in which the
investigation was conducted by the appellant have since died. Apart
from the above considerations, the High Court could not have been
oblivious of the seriousness of the alleged offences of which the accused
were charged. FIR 96 was registered on 27 November 2012 for offences
punishable under Section 328, 363A, 366 and 376 read with Section 34
of the Penal Code. The appellant was implicated on 11 January 2013
after the provisions of Sections 217, 218 and 120B were added. There
was a serious allegation of a gang rape having been committed on the
prosecutrix which is alleged to have ultimately resulted in her suicide on
26 December 2012 leading to the registration of FIR 100 under Section
306/34 IPC which was transferred to PS Samana and registered as FIR
187. The High Court by its impugned judgment and order dated 20
December 2019 remitted the conviction and sentence of the accused
and the acquittal of the appellant to the trial court and ordered a retrial.
With a lapse of over 7 years since the date of the incident, a retrial
would not advance the cause of justice but would result in a serious
24 223. What persons may be charged jointly.—The following persons may be charged
and tried together, namely:— (a) persons accused of the same offence committed in the
course of the same transaction;[..]
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miscarriage of justice. The judgment of the High Court is a travesty of
justice.
47. Even if it is conceded that the alleged offences committed in
FIR 96 and FIR 197 were committed in the course of the same transaction,
within the meaning of the phrase in Section 223(d), in view of the
interpretation in Cheemalapati Ganeswara Rao (supra), it does not
warrant the exercise of discretion to direct a retrial followed by a joint
trial. It was imperative for the accused-respondents to prove that the
separate trials caused a miscarriage of justice. The respondents have
not been able to demonstrate before the Court that separate trials led to
a miscarriage of justice. No explanation has been rendered on the aspect
of a miscarriage of justice. Though the High Court has in the impugned
judgment observed that the separate trials in FIR 96 and FIR 187 led to
a miscarriage of justice, no analysis has been undertaken to explain the
finding. Moreover, the High Court has only observed that there ‘may’ be
a miscarriage of justice. Therefore, quite apart from the individual
prejudice to the appellant which has been brought out before the Court,
we are clearly of the view that the holding of separate trials was not
contrary to law and that there was no resultant failure of justice
demonstrated to the satisfaction of the High Court.
48. We are conscious of the fact that the State of Punjab is not in
appeal before this Court against the retrial which has been ordered by
the
High Court. But as a matter of first principle, it is evident that even
the appellant has been able to establish that a retrial would be a matter
of serious prejudice since vital evidence which has been recorded during
the course of the trial would be obliterated as a result of the death of the
witnesses from the investigating team lead by the appellant. That apart,
a retrial will not serve the ends of ensuring that justice is done in a
heinous crime alleged to have been perpetrated on the prosecutrix resulting
in her suicide.
49. We accordingly allow the appeal and set aside the impugned
judgment and order of the High Court of Punjab and Haryana dated 20
December 2019. Consequently, the entire batch of criminal appeals which
have been disposed of by the impugned judgment and order shall stand
restored to the file of the High Court for disposal afresh on merits. We
clarify that nothing contained in this judgment shall be construed as the
expression of any opinion on the merits of the appeals which are to be
heard and decided by the High Court.
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
[DR. DHANANJAYA Y CHANDRACHUD, J.]

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50. The appeals are allowed in the above terms.
51. Pending application(s), if any, stand disposed of.
Nidhi Jain
Appeals allowed.