Jitendra Kumar Rode vs Union of India

Judicial directions : Digitization of Records – Issuance of directions to the High Courts to ensure that in cases of criminal trial, and civil suits, the digitization of records to be duly undertaken with promptitude at all District Courts for smooth judicial process – Issuance of SOP for digital preservation – All High Courts to establish Judicial Digital Repositories as well as standardized system. Judicial notice: Digitization of records – In accordance with the SOP issued, private entities providing specialized service have been contracted, and a robust system of responsibility and accountability to be developed and fostered to ensure the proper protection and regular updation of all records facilitating the smooth functioning of the judicial process – Judicial notice taken of the said fact.

Allowing the appeal, the Court

HELD: 1.1 If a right of production of documents at the trial stage exists, it is a natural corollary that the High Court, sitting in appeal, must benefit from those documents. In the considered view of this Court, this is a demand of the said sacrosanct requirement. [Para 18][520-F]

1.2 In the instant case, despite efforts, documents such as the witness statements, statements under Section 313 Cr.P.C. are neither available nor have been able to be reconstructed. Therefore, upholding conviction in the absence of such documents cannot be said to be in consonance with due process of law and fairness. [Para 19][520-G]

1.3 Once a violation of a right under Article 21 is established, that is undoubtedly sufficient to set aside a conviction. Nonetheless, it is essential to appreciate what the law of procedure says in this regard. After all, it cannot be gainsaid that personal liberty cut down in the absence of fair legal procedure is an affront to the sanctity of Article 21. [Para 20][521-A-B]

1.4 A bare reading of the s. 385 CrPC makes it clear that when appeals are not dismissed summarily, the appellate court shall call for the records of the Court below except in cases where the question for consideration is the legality of a sentence. There is undoubtedly a compulsion upon the appellate court to call for the record and then proceed to examine the merits of a case before it. That, as is prima facie observable, is not the case before this court. [Para 22][522-B-C]

1.5 Sub-section, 2 of Section 385, requires that the parties are heard in light of the records received by the Court. The documents undoubtedly need to include the essential documents necessary to properly appreciate the appeal on its merits. Even the depositions of the witnesses, both prosecution and defence, have not been re-constructed and are not available for the Court. [Para 31][526-G; 527-A]

1.6 The Court below, by taking a mutually contradictory view, proceeded to decide the appeal on merits sentencing the accused, forgetting that the challenge was also for conviction. And yet did not deal with the merits of the appeal, laying specific challenge to the judgment of conviction. The whole approach is illegal and erroneous. Firstly, it is observed that the record was missing, and then it casts the onus to produce the same on the appellant. [Para 32][527-B]

1.7 The accused, in appeal, has a right to have the record perused by the Appellate Court and, therefore, upholding a conviction by merely having noted that the counsel for the accused not having the record at the time of filing the appeal is “doubtful” and that “no one can believe” the appeal would have been filed without perusing the record, as observed by the High Court is not correct. The job of the Court of Appeal is not to depend on the lower Court’s judgment to uphold the conviction but, based on the record available before it duly called from the trial court and the arguments advanced before it, to come to a conclusion thereon. [Para 33][527-C-D]

1.8 In the facts of the instant case, the alleged offence was committed on 21.3.1995, and the judgment of the trial court was delivered on 7.12.1999. More than 28 years have passed since the commission of the offence. The relevant trial court record has not been able to be reconstructed, despite the efforts of the courts below. Hence, ordering a retrial is not in the interest of justice and would not serve any fruitful purpose. The time elapsed must be taken into consideration by the Court, and it is stressed on that, only after taking due note of and taking steps to abide by the warning issued by this Court. [Para 34][527-E-G]

State of U.P. v. Abhai Raj Singh and Another (2004) 4 SCC 6 : [2004] 2 SCR 818 – referred to.

Sita Ram & Others v. State 1981 Cr.LJ, 65 – referred to.

1.9 Protection of the rights under Article 21 entails protection of liberty from any restriction thereupon in the absence of fair legal procedure. Fair legal procedure includes the opportunity for the person filing an appeal to question the conclusions drawn by the trial court. The same can only be done when the record is available with the Court of Appeal. That is the mandate of Section 385 CrPC. Therefore, it is not within prudence to lay down a straightjacket formula, the non-compliance with the mandate of the section, in certain cases contingent upon specific facts and circumstances of the case, would result in a violation of Article 21 of the Constitution of India, which is found in the instant case. [Para 35][527-G-H; 528-A-B]

1.10 The language of Section 385 shows that the Court sitting in appeal governed thereby is required to call for the records of the case from the concerned Court below. The same is an obligation, power coupled with a duty, and only after the perusal of such records would an appeal be decided. [Para 36][528-C]

1.11 The impugned judgment and the conviction passed by Special Judge is set aside. [Para 37][528-D]

1.12. As regards, the digitization of records are issued the following directions:

(i) The Registrar General of the High Courts shall ensure that in all cases of criminal trial, as well as civil suits, the digitization of records must be duly undertaken with promptitude at all District Courts, preferably within the time prescribed for filing an appeal within the laws of procedure.

(ii) The concerned District Judge, once the system of digitization along with the system of authentication of the digitized records is in place in their judgeship, to ensure that the records so digitized are verified as expeditiously as possible.

(iii) A continually updated record of Register of Records digitized shall be maintained with periodic reports being sent to the concerned High Courts for suitable directions. [Para 42][529C-F] M.H. Hoskot v. State of Maharashtra (1978) 3 SCC

544 : [1979] 1 SCR 192; Bani Singh v. State of U.P. (1996) 4 SCC 720 : [1996] 3 Suppl. SCR 247; Shyam Deo Pandey and Others v. State of Bihar (1971) 1 SCC

855 : [1971] Suppl. SCR 133; Biswanath Ghosh v. State of W.B. (1987) 2 SCC 55 : [1987] 2 SCR 305;

Dhananjay Rai alias Guddu Rai v. State of Bihar 2022 SCC Online 880; V. K. Verma v. Central Bureau of Investigation (2014) 3 SCC 485 : [2014] 1 SCR 1063; Ramesh Kaushik v. State of Delhi 2022 SCC Online Del 4185; Raghuvir Sahai and Others v. State of U.P. Criminal Appeal No.786 of 1979; Avdesh Rai and Others v. State of U.P. Criminal Appeal No. 346 of 1984; Tej Pal Singh and Others v. State of U.P. 2015 SCC Online All 6581; Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 : [2010] 4 SCR 103; Queen Empress v. Khimat Singh 1889 A.W.N. 55; King – Emperor v. Dahu Raut AIR 1935 PC 89; Khalil Ahmad v. State of U.P. 1986 SCC OnLine All 211; Vir Pal v. State 1999 SCC OnLine All 1348; Hira Lal v. State of U.P. 1999 SCC OnLine All 1392; Bhunda and Ors. V. State of U.P. 2001 SCC OnLine All 864 – referred to.