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TMI Blog2017 (1) TMI 1764X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Criminal Appeal Nos. 119-122 of 2017 - - - Dated:- 31-1-2017 - Dipak Misra And R. Banumathi, JJ. For the Appellant : Nagendra Rai, Sr. Adv. and Smarhar Singh, Adv. For the Respondents : Gopal Singh, Manish Kumar, Advitya Awasthi, Mithilesh Kumar Singh, Manju Singh, J. Bangarvi and Tarun Verma, Advs. JUDGMENT R. Banumathi, J. 1. These appeals are directed against the common final order dated 28.08.2015 passed by the High Court of Judicature at Patna in Criminal Appeal (SJ) No. 230 of 2015, Criminal Appeal (SJ) No. 275 of 2015, Criminal Appeal (SJ) No. 232 of 2015 and Criminal Appeal (SJ) No. 243 of 2015 setting aside the judgment of the trial court and directing the retrial of Session Trial No. 14 of 2008/637 of 2008 against the Appellants. 2. Briefly stated, case of the prosecution is that on 15.05.2007, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the High Court in paras (29) and (30) of its judgment pointed out certain lapses on the part of Investigating Officer/trial court and held that the trial court failed to take appropriate action on the lapses. After quoting relevant extracts from the judgments in Mina Lalita Baruwa v. State of Orissa and Ors. (2013) 16 SCC 173 and Nar Singh v. State of Haryana (2015) 1 SCC 496, the High Court set aside the judgment of the conviction and sentence recorded by the trial court and the matter was remitted back to the trial court to proceed afresh in accordance with law. Being aggrieved, the Accused-Appellants have preferred these appeals. 5. Learned Counsel for the Appellants submitted that the High Court being the First Appellate Court should have appreciated the evidence on its own merits; instead it erred in remitting the matter back to the trial court to proceed afresh and the order for de novo trial would cause serious prejudice to the Accused-Appellants. 6. We have heard the learned Counsel for the State as well as counsel for the complainant i.e. brother of the deceased Asim Kumar Chatarjee. Both of them submitted that the evidence available on record is sufficient to sus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Accused. It depends upon facts and circumstances of each case and the nature of prejudice caused to the Accused. In our view, the High Court has not properly appreciated Nar Singh's case where this Court laid down that the appellate court can order for fresh trial from the stage of examination Under Section 313 Code of Criminal Procedure., only in cases where failure to question the Accused on certain incriminating evidence has resulted in serious prejudice to the Accused. The High Court, in our view, has not properly appreciated the ratio laid down in Nar Singh's case and erred in applying the same to the present case. 10. Section 386 Code of Criminal Procedure deals with the powers of the appellate court. As per Section 386(b) Code of Criminal Procedure., in an appeal from a conviction, the appellate court may: (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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons. 13. This Court, while dealing with the question whether the High Court should have quashed the trial proceedings only on account of declaration of the legal position made by the Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act, this Court stated, a de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable; it should be limited to the extreme exigency to avert 'a failure of justice'. Observing that any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial . In State of M.P. v. Bhooraji and Ors. (2001) 7 SCC 679, the Court went on to say further as follows: 8.... This is because the appellate court has plenary powers for revaluating and reappraising the evidence and even to take additional evidence by the appellate court itself or to direct such additional evidence to be collected by the trial court. But to replay the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord Diplock in Town Investments Ltd. v. Deptt. of the Environment 1977 (1) All E.R. 813). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage. 15. In Gopi Chand v. Delhi Administration AIR 1959 SC 609, a Constitution Bench of this Court was concerned with the criminal appeals wherein plea of the validity of the trial and of the orders of conviction and sentence was raised by the Appellant. That was a case where the Appellant was charged for three offences which were required to be tried as a warrant case by following the procedure prescribed in the Code of Criminal Procedure, 1860 but he was tried under the procedure prescribed for the trial of a summons case. The procedure for summons case and warrants case was materially different. The Constitution Bench held that having regard to the nature of the charges framed and the character and volume of evidence led, the Appellant was prejudiced; accordingly, set aside the orders of conviction and sentence and the Constitution Bench held as under: 29. .... the offences with which the Appellant stands charged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an Accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social impact and societal needs must be weighed along with the right of an Accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of Accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end. These principles must apply as well when the appeal court is confronted with the question whether or not retrial of an Accused should be ordered. 42. The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the Accused Under Section 386 of the Code. That is clear from the bare language of Section 386(b). Though such power exists, it should not be exercised in a routine manner. A 'de novo trial' or retrial is not the second trial; it is continuation of the same trial and same ..... X X X X Extracts X X X X X X X X Extracts X X X X
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