TaxTMI 
TaxTMI 
2021 (10) TMI 1409
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....gether 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 ....
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....se registered as FIR 96 of 2012. The SIT concluded that the investigation conducted by the appellant in FIR 96 of 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. 7. On 15 January 2013, the appellant was implicated in respect of FIR 96 of 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) Sande....
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....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: (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 app....
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....tional 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 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....
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....4 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 w....
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....at 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 r....
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....wer 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 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....
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.... 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 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 ....
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....me Court held in a decision in Gangula Ashok v. State of A P (2000) 2 SCC 504, 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 t....
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.... 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 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....
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....s 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), (2012) 9 SCC 408 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 proc....
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....a two judge Bench of this Court in Ajay Kumar Ghoshal v. State of Bihar (2017) 12 SCC 699 ("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 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. Cert....
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....de 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. 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 ....
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....gether 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. SubSection (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 offenc....
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.... 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 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....
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....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 ....
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....ly 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 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 th....
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....t 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 ....
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....pply 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 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 sta....
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....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 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 h....
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....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) "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. 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 th....
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....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 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 G....