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2021 (10) TMI 1409 - SC - Indian LawsClubbing of FIR - remission of orders of acquittal and conviction arising out of two separate FIRs for fresh trial and clubbing of both - whether holding separate trials arising out of two FIRs warrants the direction of the High Court for a de novo trial? HELD THAT - The scope of the power of the Appellate Court to direct a re-trial has come up before this Court for interpretation in several decisions. The judgment of a Constitution Bench in PANDIT UKHA KOLHE VERSUS THE STATE OF MAHARASHTRA 1963 (2) TMI 60 - SUPREME COURT has dealt with the issue extensively. In that case the appellant was tried before the Judicial Magistrate for the offence of rash and negligent driving while under the influence of liquor thereby causing the death of one person and injuries to four others and for offences under the Motor Vehicles Act. The Trial Judge held that the evidence was not sufficient to prove that the appellant was driving the motor vehicle at the time of the mishap and acquitted him of the offences under the Motor Vehicles Act and the Penal Code. But he held that the evidence established that the appellant had consumed illicit liquor and committed an offence punishable under Section 66(b) of the Bombay Prohibition 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. In Zahira Habibulla Sheikh v. State of Gujarat 2004 (4) TMI 629 - SUPREME COURT this Court had directed the retrial of the Best Bakery Case where communal riots in the State of Gujarat had led to a massacre. The trial court had acquitted the accused and the appeal against it was dismissed by the High Court. Along with the appeal the High Court also dismissed the petitions filed for adducing additional evidence and a direction seeking retrial. In NAR SINGH VERSUS STATE OF HARYANA 2014 (11) TMI 1271 - SUPREME COURT this Court was considering the question whether the Appellate Court can direct a retrial if all the relevant questions are not put to the accused by the trial court as required under Section 313 CrPC. This Court answered the question in the affirmative holding that the Appellate Court may direct a retrial in such circumstances from the stage of questioning the accused because non-compliance of Section 313 CrPC had caused prejudice to the accused. Power to Direct Joint Trial - 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 the FIRs? - HELD THAT - 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 result of the trial. The Court further observed that its attention was not drawn to any material on record suggesting that prejudice had been caused to the appellant as a result of a separate trial. It was finally held that the plea of self defence and the argument that both the offences were committed during the course of the same transaction was rejected by both the courts below and that the court would not interfere with concurrent findings of fact. In ESSAR TELEHOLDINGS LTD VERSUS CENTRAL BUREAU OF INVESTIGATION 2015 (9) TMI 1749 - SUPREME COURT Justice R F Nariman speaking for a three-Judge Bench reiterated the principles which have been enunciated in Chandra Bhal 1970 (2) TMI 144 - SUPREME COURT . Further it was held that even if the conditions stipulated in Section 223 CrPC to conduct a joint trial have been fulfilled it may not be desirous to direct a joint trial if a joint trial would (i) prolong the trial; (ii) cause unnecessary wastage of judicial time; and (iii) confuse or cause prejudice to the accused who had taken part only in some minor offence. The High Court in the present case was conscious of the fact that the appellant Nasib Singh was tried together with the other appellants during the trials in both the FIRs in view of Section 223(a) CrPC 223. What persons may be charged jointly. The following persons may be charged and tried together namely (a) persons accused of the same offence committed in the course of the same transaction - 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. 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 we are clearly of the view that 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. 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 lead by the appellant. That apart a retrial will 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. The impugned judgment and order of the High Court of Punjab and Haryana dated 20 December 2019 set aside - appeal allowed.
Issues Involved:
1. Whether holding separate trials arising out of two FIRs warrants the direction of the High Court for a de novo trial. Issue-Wise Detailed Analysis: 1. Whether holding separate trials arising out of two FIRs warrants the direction of the High Court for a de novo trial: Background: The appeals arise from a judgment by the High Court of Punjab and Haryana, which remitted the orders of acquittal and conviction arising out of two separate FIRs for fresh trial and directed that the proceedings arising out of both the FIRs be clubbed together under Section 223 CrPC and be tried together by one court. Prosecution's Case: On 13 November 2012, the prosecutrix was allegedly abducted and raped by the accused. An FIR (96/2012) was registered on 27 November 2012 under Sections 363, 366A, 376, 328, and 34 IPC. The prosecutrix committed suicide on 26 December 2012, leaving a suicide note implicating the accused. A second FIR (187/2012) was registered on 31 December 2012 under Section 306 read with Section 34 IPC. Trial Court's Findings: The Additional Sessions Judge, Patiala, convicted the accused in the trial arising out of FIR 96/2012 for offences under Sections 376(2)(g), 366, 328, and 120B IPC. The appellant Nasib Singh was acquitted on the grounds that there was no evidence proving he conducted a tainted investigation. In the trial arising out of FIR 187/2012, the accused were convicted under Section 306 IPC, but Nasib Singh was acquitted. High Court's Judgment: The High Court remitted the judgments of conviction and acquittal for a retrial, directing that the trials be clubbed and tried together under Section 223 CrPC. The High Court noted that: - Most of the witnesses in the proceedings arising out of the different FIRs are common. - The evidence in FIR 187 was produced during the trial in FIR 96. - Both offences are connected, and separate trials would cause serious prejudice. - The court has the discretion to decide if the FIRs must be tried together or separately. The High Court concluded that the offences in the separate FIRs "are so connected together as to form part of the same transaction." Supreme Court's Analysis: The Supreme Court emphasized that the power to order a retrial is of an exceptional nature and should be exercised only to prevent a miscarriage of justice. The Court noted several principles regarding retrials: - A retrial should be ordered only in exceptional cases to avert a miscarriage of justice. - Mere lapses in the investigation are not sufficient to warrant a retrial unless they are so grave as to prejudice the rights of the parties. - An order of retrial wipes out the earlier proceeding and exposes the accused to another trial. The Court found that the High Court did not establish clear prejudice caused by the separate trials. The appellant argued that a retrial would cause serious prejudice as crucial witnesses who deposed in regard to the investigation conducted by him have since died. The Supreme Court concluded that holding separate trials was not contrary to law and that there was no resultant failure of justice demonstrated to the satisfaction of the High Court. Conclusion: The Supreme Court allowed the appeal, setting aside the High Court's judgment and order for a retrial. The criminal appeals disposed of by the High Court were restored for disposal afresh on merits. The Court clarified that nothing in its judgment should be construed as an expression of any opinion on the merits of the appeals to be heard by the High Court. Final Judgment: The appeals are allowed, and the High Court's judgment and order dated 20 December 2019 are set aside. The criminal appeals are restored to the High Court for disposal afresh on merits.
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