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2017 (1) TMI 1764 - SC - Indian LawsRetrial of the case - 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? - HELD THAT - In ZAHIRA HABIBULLA H SHEIKH AND ANR. VERSUS STATE OF GUJARAT AND ORS. 2004 (4) TMI 629 - SUPREME COURT , 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 High Court has not shown as to how the alleged lapses pointed out by the High Court have resulted in miscarriage of justice. When the Accused prefers an appeal against their conviction and sentence, the appellate court is duty bound to consider the evidence on record and independently arrive at a conclusion. The High Court erred in remitting the matter back to the trial court for fresh trial and the impugned order cannot be sustained. The matter is remitted back to the High Court for consideration of the matter afresh - Appeal allowed by way of remand.
Issues Involved:
1. Validity of the High Court's order for retrial. 2. Examination of the alleged lapses in the prosecution case. 3. Applicability of precedents regarding retrial. 4. Powers of the appellate court under Section 386 of the Code of Criminal Procedure (CrPC). 5. Consideration of miscarriage of justice and failure of justice. Detailed Analysis: 1. Validity of the High Court's Order for Retrial: The appeals challenge the High Court's order dated 28.08.2015, which set aside the trial court's judgment and directed a retrial. The Supreme Court scrutinized whether the High Court correctly identified serious irregularities in the prosecution case that necessitated a retrial. 2. Examination of the Alleged Lapses in the Prosecution Case: The High Court pointed out certain lapses in the investigation and trial but did not explain how these lapses resulted in a miscarriage of justice. The Supreme Court emphasized that not all lapses justify a retrial. The appellate court must determine whether the lapses affected the prosecution case or resulted in a failure of justice. 3. Applicability of Precedents Regarding Retrial: The High Court relied on the judgment in *Nar Singh v. State of Haryana* to remit the case for retrial. However, the Supreme Court noted that the High Court misapplied this precedent. In *Nar Singh*, the failure to question the accused on certain incriminating evidence warranted a retrial. The Supreme Court clarified that retrial should only be ordered when such omissions cause serious prejudice to the accused. 4. Powers of the Appellate Court Under Section 386 of CrPC: Section 386 CrPC allows the appellate court to order a retrial in exceptional cases where serious irregularities or illegalities have resulted in a failure of justice. The Supreme Court reiterated that retrial should be a last resort and should only be ordered when the trial was vitiated by serious legal errors or procedural irregularities that fundamentally affected the trial's fairness. 5. Consideration of Miscarriage of Justice and Failure of Justice: The Supreme Court highlighted that the High Court failed to demonstrate how the alleged lapses led to a miscarriage of justice. The appellate court must independently evaluate the evidence and determine if the lapses caused a failure of justice. The Supreme Court referred to various precedents, including *Pandit Ukha Kolhe v. State of Maharashtra* and *State of M.P. v. Bhooraji and Ors.*, emphasizing that retrial should only be ordered in extreme cases where the original trial was fundamentally flawed. Conclusion: The Supreme Court concluded that the High Court erred in ordering a retrial without adequately demonstrating how the lapses resulted in a miscarriage of justice. The impugned judgment of the High Court was set aside, and the matter was remitted back to the High Court for fresh consideration. The High Court was directed to afford sufficient opportunity to the accused-appellants, the prosecution, and the informant, and to proceed with the matter in accordance with the law. The Supreme Court clarified that it had not expressed any opinion on the merits of the case.
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