TaxTMI 
TaxTMI 
2017 (1) TMI 1764
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.... of Ajay Kumar Ghoshal on 03.02.2007 and at the time of her marriage, the complainant gave cash and ornaments as per his capacity and all the usual gifts given in a marriage to the Accused-Appellants. PW-5 asserted that the husband, father-in-law and mother-in-law (Munmun Ghoshal) kept demanding dowry from his deceased sister and upon his inability to fulfill their demands, they in turn tortured Bandhavi Ghoshal mentally and physically. The complainant stated that on 15.05.2007, he received information from Bhagalpur about the death of his sister deceased Bandhavi @ Bani Ghoshal in her matrimonial home, in suspicious circumstances and he went to Bhagalpur. The complainant stated that he saw the dead body of his sister and noticed that her wrist veins were cut and her body had the marks of hanging, assault and electrocution. On the basis of aforesaid, FIR was registered Under Section 304(B), Section 34 Indian Penal Code at Kotwali (Tilkamanjhi) P.S. Case No. 281 of 2007. After completion of investigation, the charge-sheet was filed against the Appellants Under Sections 302, 304B, 201, 498A, 120B Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act. 3. In order to prove....
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.... question falling for consideration is whether there was serious irregularities in the prosecution case thereby necessitating retrial and whether the irregularities pointed out by the High Court are such as resulting in miscarriage of justice thereby constraining the High Court to set aside the judgment of the Sessions Court and direct for retrial. 8. In para (29) of its judgment, the High Court pointed out certain lapses; but has not stated as to how such alleged lapses has resulted in miscarriage of justice necessitating retrial. Certain lapses either in the investigation or in the 'conduct of trial' are not sufficient to direct retrial. The High Court being the First Appellate Court is duty bound to examine the evidence and arrive at an independent finding based on appraisal of such evidence and examine whether such lapses actually affect the prosecution case; or such lapses have actually resulted in failure of justice. The circumstances that should exist for warranting retrial must be such that whether the trial was undertaken by the court having no jurisdiction or trial was vitiated by serious illegality or irregularity on account of misconception of nature of proce....
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....s Clause is to be exercised only in exceptional cases, where the appellate court is satisfied that the omission or irregularity has occasioned in failure of justice. The circumstances that should exist for warranting a retrial must be such that where the trial was undertaken by the Court having no jurisdiction, or trial was vitiated by serious illegality or irregularity on account of the misconception of nature of proceedings. An order for retrial may be passed in cases where the original trial has not been satisfactory for some particular reasons such as wrong admission or wrong rejection of evidences or the Court refused to hear certain witnesses who were supposed to be heard. 12. 'De novo' trial means a "new trial" ordered by an appellate court in exceptional cases when the original trial failed to make a determination in a manner dictated by law. The trial is conducted afresh by the court as if there had not been a trial in first instance. Undoubtedly, the appellate court has power to direct the lower court to hold 'de novo' trial. But the question is when such power should be exercised. As stated in Pandit Ukha Kolhe v. State of Maharashtra (1964) SCR 926, t....
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....whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence, the said course can be resorted to when it becomes unpreventable for the purpose of averting "a failure of justice". The superior court which orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the trouble to reach the court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation. 14. In Bhooraji's case, the Court referred to Chapter XXXV of the Code and, particularly, Sections 461, 462 and 465(1). After noticing the above provisions, the Court observed in paragraphs (15) and (16) of the order as follows: 15. A reading of the Section makes it clear that the error, omission or irregularity in the proceedings held before or d....
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....justify his prayer that we should not order his retrial. In our opinion, having regard to the gravity of the offences charged against the Appellant, the ends of justice require that we should direct that he should be tried for the said offences de novo according to law. We also direct that the proceedings to be taken against the Appellant hereafter should be commenced without delay and should be disposed as expeditiously as possible. 16. In Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors. (2004) 4 SCC 158, [Best Bakery case] being an extraordinary case, the Supreme Court was convinced that the witnesses were threatened to keep themselves away from the Court and in such facts and circumstances of the case, not only the Court directed a 'de novo' trial but made further direction for appointment of the new prosecutor and retrial was directed to be held out of the State of Gujarat. The law laid down in Best Bakery case for retrial was in the extraordinary circumstances and cannot be applied for all cases. 17. After considering the question a "speedy trial" and "fair trial" to a person Accused of a crime and after referring to a catena of decisions and obse....