TMI Blog2004 (3) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... ed persons (present respondents) who were appellants before it. Background facts need be noticed are essentially as follows: Accused persons faced trial for alleged commission of offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC'). According to prosecution, Shakuntla Devi and Munni Devi were sleeping on the roof of the second storey of their house. Kanti Devi was sleeping on the open roof in front of the southern verandah on the first floor of the house. The main door of the house on the east was closed. There were no other persons in the house because Nathoo Singh and Brij Pal Singh were both in jail being accused of the murder of Jogendra Singh. It is said that these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s placed. Accused persons pleaded innocence and faced trial. The present respondents were found guilty, convicted and sentenced as afore-noted. Before commencement of trial accused Jagannath died. Two appeals against the common judgment and order dated 23.6.1979 were filed by the respondents Om Pal Singh, Abhai Raj Singh and Ved Pal Singh. After admission of the appeal, registry of the High Court sent for the records from the Trial Court. By letter dated 27.6.1984 the office-in-charge (Record room) Judges Court Bareilly informed the High Court that the records of the case were not available having been destroyed in the fire that broke out in the night between 18/19.11.1979. Nothing seems to have been done thereafter, though we feel that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng appeals not dismissed summarily and powers of the Appellate Court . They read as follows: Section 385- Procedure for hearing appeals not dismissed summarily: (1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given- (i) to the appellant or his pleader; (ii) to such officer as the State Government may appoint in this behalf; (iii) if the appeal is from a judgment of conviction in a case instituted upon complaint to the complainant; (iv) if the appeal is under Section 377 or Section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal. (2) The Appellate Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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; (3) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reconstruction is possible to be made, said course should be adopted and the appeal can be disposed of as it deserved under course indicated in clauses (i) and (ii). After perusal of the records and hearing appellant's pleader and public prosecutor under Section 377 or 378, the exercise of power as indicated above can be resorted to. As was observed in Bani Singh and Ors. v. State of U.P. (1996 (4) SCC 720) the plain language of Section 385 makes it clear that if the Appellate Court does not consider the appeal fit for summary dismissal, it must call for the records and Section 386 mandates that after record is received, the Appellate Court may dispose of the appeal after hearing as indicated. A question would further arise as to wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt did not require the Sessions Court to furnish the information about re-construction of records; and/or itself take initiative by issuing positive directions as to the manner, method and nature of attempts, efforts and exercise to be undertaken to effectively achieve the purpose in the best interests of justice and to avoid ultimately any miscarriage of justice resulting from any lapse, inaction or inappropriate or perfunctory action, in this regard; particularly when no action was taken by the High Court to pass necessary orders for about a decade when it received information about destruction of record. The course adopted by the High Court, if approved, would encourage dubious persons and detractors of justice by allowing undeserved pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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