Nasib Singh vs The State of Punjab & Anr.

1.2 A retrial would not be ordered unless the appellate court is satisfied that the court trying the proceeding had no jurisdiction; the trial was vitiated by serious illegalities and irregularities or on account of a misconception of the nature of the proceedings as a result of which no real trial was conducted; or the prosecutor or an accused was for reasons beyond their control prevented from leading or tendering evidence material to the charge and that in the interest of justice, the appellate court considers it appropriate to order a retrial. An order of retrial wipes out from the record the earlier proceeding and exposes the present accused to another trial. It is for that reason that a retrial cannot be ordered merely on the ground that the prosecution did not produce proper evidence and did not know how prove their case. [Para 22][587-E-H]

1.3 The principles emerging on retrial can be formulated as under:

(i) The appellate court may direct a retrial only in ‘exceptional’ circumstances to avert a miscarriage of justice;

(ii) Mere lapses in the investigation are not sufficient to warrant a direction for re- trial. Only if the lapses are so grave so as to prejudice the rights of the parties, can a retrial be directed;

(iii) A determination of whether a ‘shoddy’ investigation/trial has prejudiced the party, must be based on the facts of each case pursuant to a thorough reading of the evidence;

(iv) It is not sufficient if the accused/ prosecution makes a facial argument that there has been a miscarriage of justice warranting a retrial. It is incumbent on the appellate court directing a retrial to provide 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 Court could order a retrial on the ground of miscarriage of justice when the trial court has proceeded with the trial in the absence of jurisdiction; the trial has been vitiated by an illegality or irregularity based on a misconception of the nature of the proceedings; and 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. [Para 28][594-A-H]

1.4 The principles formulated on joint trial and separate trials are that section 218 provides that separate trials shall be conducted for distinct offences alleged to be committed by a person. Sections 219 - 221 provide exceptions to this general rule. If a person falls under these exceptions, then a joint trial for the offences which a person is charged with may be conducted. Similarly, under Section 223, a joint trial may be held for persons charged with different offences if any of the clauses in the provision are separately or on a combination satisfied. While applying the principles enunciated in Sections 218 - 223 on conducting joint and separate trials, the trial court should apply a two-pronged test, namely, whether conducting a joint/separate trial will prejudice the defence of the accused; and/or whether conducting a joint/separate trial would cause judicial delay. 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. 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. 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. [Para 38][603-D-H; 604-A-B]

1.5 As regards, the judgment of the Additional Sessions Judge 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: the appellant’s name is not mentioned in the suicide note; the original suicide note which was taken into possession by PW 22 (investigating Officer) had not been tampered with by the appellant and PW 22 had admitted during his cross-examination that the preliminary investigation conducted by the appellant had been adopted by him during further investigation; and PW12, PW2 and PW21 had not made any allegation during the course of their evidence against the appellant but on the contrary had stated that he had conducted a proper investigation. On appreciating the evidence, the trial judge came to the conclusion that there was an absence of evidence on record to demonstrate that the appellant committed any offence under Sections 306, 217, and 218 IPC. [Para 39][604-D-H; 605-A-B]

1.6 The High Court proceeded to order a retrial holding that a separate trial in FIR 96 and FIR 187 has caused prejudice to both the parties in as much as they were unable to rely on the evidence in the other case. The High Court held that the Court has the discretion to conduct a joint trial for both the alleged offences, namely, the gang rape of the prosecutrix and the resultant suicide and its abetment since they are connected in view of Section 223(d) CrPC; the prosecution and the defence are relying on the facts and evidence of both the cases-FIR 96 and 187. But since the trials were separately held, in view of Nathi Lal’s case, the Court was unable to refer to the evidence in the other case. If the evidence in the trials arising out of both FIRs is not scanned together by the court to arrive at the final conclusion, it will lead to a failure of justice; and though the appellant was acquitted in both FIR 96 and FIR 187, taking into the consideration the entire situation and ‘the angle of failure of justice, the case must be remanded for retrial. [Para 40] [605-B-F]

1.7 The power to order a retrial has been consistently held to be of an exceptional nature beginning with the formulation of the principles by the Constitution Bench in Ukha Kolhe’s case and the resultant formulation, more recently, by the two judge Bench in Ajay Kumar Ghoshal’s case. Directing a joint trial is not mandatory but lies within the discretion of the Court under Section

223 of the CrPC. Clause (d) of Section 223 permits persons accused of different offences committed in the course of the same transaction to be charged and tried together. [Para 42][606-E-F] Ukha Kolhe v. State of Maharashtra (1964) 1 SCR 926 – followed.

Ajay Kumar Ghoshal v. State of Bihar (2017) 12 SCC

699 : [2017] 1 SCR 469 – relied on.

1.8 The High Court was conscious of the fact that the appellant was tried together with the other appellants during the trials in both the FIRs in view of Section 223(a) CrPC. The appellant was acquitted in the Sessions trial arising out of FIR 96 on 29 November 2014 and in the trial arising out of FIR 187/2012 on 29 January 2015. Though the High Court noted that “he had earned a right and it should be slow in disturbing the same”, it yet remanded both the cases back for retrial “to maintain balance and delivery of justice”. There is merit in the submission which had been submitted both by counsel for the appellant and for the State of Punjab that the order of retrial wipes out the entire record of evidence. 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. [Para 45][607-F-G; 608-A-D]

1.9 The appellant has set up the plea that ordering a retrial at this stage would be a matter of serious prejudice since crucial witnesses who deposed in regard to the manner in which the investigation was conducted by the appellant have since died. Apart from the above considerations, the High Court could not have been oblivious of the seriousness of the alleged offences of which the accused were charged. FIR 96 was 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 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. [Para 46][608-D-G; 609-A]

1.10 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’s case, 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 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, the holding of separate trials was not contrary to law and that there was no resultant failure of justice demonstrated to the satisfaction of the High Court. [Para 47][609-B-E]

State of Andhra Pradesh v. Cheemalapati Ganeswara Rao AIR 1963 SC 1850 : [1964] SCR 297 – relied on.

1.11 The State of Punjab is not in appeal before this Court against the retrial which has been ordered by the High Court. But as a matter of first principle, it is evident that even the appellant has been able to establish that a retrial would be a matter of serious prejudice since vital evidence which has been recorded during the course of the trial would be obliterated as a result of the death of the witnesses from the investigating team led by the appellant. That apart, a retrial would not serve the ends of ensuring that justice is done in a heinous crime alleged to have been perpetrated on the prosecutrix resulting in her suicide. [Para 48][609-E-F]

1.12 The impugned judgment and order of the High Court is set aside. [Para 49][609-G]

Nathi Lal v. State of UP 1988 SC (Criminal) 638; Nathi Lal v. State of UP (1990) Supp SCC 145; State of Andhra Pradesh v. Cheemalapati Ganeswara Rao AIR 1963 SC 1850 : [1964] SCR 297; State of M P v. Bhooraji (2001) 7 SCC 679 : [2001] 2 Suppl. SCR 128; Gangula Ashok v. State of A P (2000) 2 SCC 504 : [2000] 1 SCR 468; Zahira Habibulla Sheikh v. State of Gujarat (2004)

4 SCC 158 : [2004] 3 SCR 1050; Satyajit Banerjee v. State of West Bengal 2005 (1) SCC 115 : [2004] 6 Suppl. SCR 294; Mohd Hussain v. State (Government of NCT of Delhi) (2012) 9 SCC 408 : [2012] 10 SCR 480; Nar Singh v. State of Haryana (2015) 1 SCC 496 : [2014]

12 SCR 218; Isaac v. Ronald Cheriyan (2018) 2 SCC

278 : [2018] 1 SCR 217; Mary Pappa Jebamani v. Ganesan (2014) 14 SCC 477 : [2013] 11 SCR 1042; R. Dineshkumar v. State (2015) 7 SCC 497 : [2015] 5 SCR 605; Chandra Bhal v. The State of UP 1971 (3) SCC 983; Essar Teleholdings Limited v. Central Bureau of Investigation (2015) 10 SCC 562 : [2015] 11 SCR

340 – referred to.