The appellate court may order for de-novo trial if any illegality was found in the trial, and there is no requirement to start de-novo trial when the case is transferred to another court without assigning a reason.

JUDGMENT :

1. Heard Mr. Gaurang Jajodia, the learned counsel appearing on behalf of the petitioners and Mr. Anish Mishra, the learned counsel appearing on behalf of the respondent State.

2. This petition has been filed for quashing the order dated 23.08.2019 passed in connection with B.S.City P.S.Case No.349 of 2011, corresponding to G.R.No.1224 of 2011 whereby the learned court has directed for de-novo trial, pending in the court of learned Sub Divisional Judicial Magistrate, Bokaro.

3. The learned counsel appearing on behalf of the petitioners submits that the case is pending since last ten years. He further submits that the case was instituted on the basis of written report of the informant in which he has stated and alleged that pursuant to Memo No.1129 dated 13.09.2011, a team was constituted comprising of Executive Magistrate, Circle Inspector, Incharge Block Supply Officer for the prevention of unauthorized use of Domestic LPG Cylinders in commercial use and for this purpose, a raid was conducted in different places. On 14.09.2011 at about 10.20 hours, a raid was conducted in the New Coffee House shop under the B.S. City P.S. from where domestic LPG cylinders were recovered, the owner of the said shop was not present there hence the seizure list was prepared and a copy of that was handed over to the manager of the said shop. Later on, on 14.09.2011 at about 11.00 hours again a raid was conducted at co-operative colony in the house No.S/03 in which a hotel was situated with the name of Manpasand Sweets in which the sweets were being prepared. On this background, the FIR was lodged.

4. The learned counsel submits that the petitioner no.1 is manager and petitioner no.2 is worker of the said Blue Diamond Hotel. He submits that charge sheet has been submitted against seven persons including the petitioners under section 7 of the Essential Commodities Act, 1959 and L.P.G. (Regulation and Distribution) Order, 2000 and the case was pending before the court of learned Judicial Magistrate, 1st Class, Bokaro and subsequently by order of learned District and Sessions Judge, the said case was transferred to learned S.D.J.M., Bokaro and learned S.D.J.M. by order dated 28.03.2019 has ordered that the case will proceed de-novo. He submits that even there is no reason disclosed in the said order. He relied in the case of Ajay Kumar Ghoshal v. State of Bihar, (2017) 12 SCC 699, paragraph no.12 of the said judgment is quoted below:

“12. “De novo” trial means a “new trial” ordered by an appellate court in exceptional cases when the original trial failed to make a determination in a manner dictated by law. The trial is conducted afresh by the court as if there had not been a trial in first instance. Undoubtedly, the appellate court has power to direct the lower court to hold “de novo” trial. But the question is when such power should be exercised. As stated in Ukha Kolhe v. State of Maharashtra, the Court held that: (AIR p. 1537, para 11)

“11. An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of retrial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to