2021 Supreme(SC) 606

SUPREME COURT OF INDIA
Dhananjaya Y Chandrachud, Vikram Nath, B.V. Nagarathna, JJ.
Nasib Singh - Appellant
Versus
The State of Punjab & Anr. - Respondents
Criminal Appeal Nos. 1051-1054, 1055-1059 of 2021
Decided On : 08-10-2021

IMPORTANT POINTS
(1) Order of retrial wipes out from record earlier proceeding and exposes present accused to another trial – Retrial cannot be ordered merely on the ground that prosecution did not produce proper evidence and did not know how prove their case.
(2) It is incumbent on Appellant Court directing a retrial to provide a reasoned order on nature of miscarriage of justice caused with reference to evidence and investigatory process.
(3) A separate trial is not contrary to law even if a joint trial for offences along with other offences is permissible – Possibility of a joint trial has to be decided at beginning of trial and not on the basis of result of trial.
(4) Directing joint trial is not mandatory but lies within discretion of Court under Section 223 of Cr.P.C.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 386 – Retrial – Retrial would not be ordered unless Appellate Court is satisfied that court trying proceeding had no jurisdiction; trial was vitiated by serious illegalities and irregularities or on account of a misconception of nature of proceedings as a result of which no real trial was conducted; or prosecutor or an accused was for reasons beyond their control prevented from leading or tendering evidence material to charge and that in interest of justice, Appellate Court considers it appropriate to order a retrial – Order of retrial wipes out from record earlier proceeding and exposes present accused to another trial – Retrial cannot be ordered merely on the ground that prosecution did not produce proper evidence and did not know how prove their case. (Para 22)

(B) Criminal Procedure Code, 1973 – Section 386 – Retrial – Appellate Court may direct a retrial only in ‘exceptional’ circumstances to avert a miscarriage of justice – Mere lapses in investigation are not sufficient to warrant a direction for retrial – Only if lapses are so grave so as to prejudice rights of parties, can a retrial be directed – Determination of whether a shoddy investigation/trial has prejudiced the party, must be based on facts of each case pursuant to a thorough reading of evidence – It is not sufficient if accused/ prosecution makes a facial argument that there has been a miscarriage of justice warranting a retrial – It is incumbent on Appellant Court directing a retrial to provide a reasoned order on nature of miscarriage of justice caused with reference to evidence and investigatory process – If a matter is directed for re-trial, evidence and record of previous trial is completely wiped out. (Para 28)

(C) Criminal Procedure Code, 1973 – Section 223 – Indian Penal Code, 1860 – Section 306 read with Section 34 and Sections 217, 218 and 120-B – Joint trial – A separate trial is not contrary to law even if a joint trial for offences along with other offences is permissible – Possibility of a joint trial has to be decided at beginning of trial and not on the basis of result of trial – True test is whether any prejudice has been sustained as a result of a separate trial – Retrial with a direction of joint trial would be ordered only if there is failure of justice – Separate trials shall be conducted for distinct offences alleged to be committed by a person – While applying principles enunciated in Sections 218 - 223 on conducting joint and separate trials, trial court should apply a two-pronged test, namely, (i) whether conducting a joint/separate trial will prejudice defence of accused; and/or (ii) whether conducting a joint/separate trial would cause judicial delay – Appellate Court may determine validity of argument that there ought to have been a separate/joint trial only based on whether trial had prejudiced right of accused or prosecutrix – Appellate Court may determine validity of argument that there ought to have been a separate/joint trial only based on whether trial had prejudiced right of accused or prosecutrix – Directing joint trial is not mandatory but lies within discretion of Court under Section 223 of Cr.P.C. – High Court by its impugned judgment and order remitted conviction and sentence of accused and acquittal of appellant to trial court and ordered retrial – With a lapse of over 7 years since date of incident, retrial would not advance cause of justice but would result in a serious miscarriage of justice – Judgment of High Court is a travesty of justice – Respondents have not been able to demonstrate before Court that separate trials led to a miscarriage of justice – Holding of separate trials was not contrary to law and that there was no resultant failure of justice demonstrated to satisfaction of High Court – Impugned judgment and order of High Court set aside. (Paras 36, 38, 42, 46, 47 and )

Facts of the case:

Instant appeals arise from a judgment dated 20th December 2019 of a Division Bench of the High Court of Punjab and Haryana in a batch of nine criminal appeals. The High Court 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 FIRs be clubbed together under Section 223 Cr.P.C. and be tried together by one court. The issue that arises for consideration is whether holding separate trials arising out of two FIRs warrants the direction of the High Court for a de novo trial.

Findings of Court:

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.

Result : Appeals allowed.