TMI Blog2021 (10) TMI 1409X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In Zahira Habibulla Sheikh v. State of Gujarat [ 2004 (4) TMI 629 - SUPREME COURT ] , 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. In NAR SINGH VERSUS STATE OF HARYANA [ 2014 (11) TMI 1271 - SUPREME COURT] , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the course of the same transaction - 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. 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 just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 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 semiconscious. 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 Polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eged 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 96 of 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 Sr. No. Offence Sentence Awarded 1 U/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: (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, 37 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 UP 1988 SC (Criminal) 638, 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 CRAD-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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 Singh (who were part of the investigating team with the appellant) have died and their depositions in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 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. [..] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rollary. 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 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 Bengal 2005 (1) SCC 115, 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 disti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slature 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 ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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. State (2015) 7 SCC 497 . 35. In Chandra Bhal v. The State of UP 1971 (3) SCC 983, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 2015 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: (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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. 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 J C 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 undertak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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