Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(P&H) 1130

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Jasjit Singh Bedi, J.
Gulbaz Singh - Petitioner - Appellant
Versus
State of Punjab - Respondent - Respondent
CRR-1414 of 2018 (O& M)
Decided On : 09-05-2023

Advocates appeared:
Mr. Vipin Mahajan, Advocate for the petitioner.
Ms. Ramta K Chaudhary, DAG, Punjab.

Re-trial should only be ordered in exceptional circumstances where the trial was vitiated by serious illegalities or irregularities, or where the prosecutor or accused were prevented from tendering material evidence. The need for additional evidence to be taken sparingly and only in suitable cases, and the limitations on the power to order re-trial.

Headnote:
RE-TRIAL - Criminal Procedure - Section 386, Section 391 - The court ordered a re-trial based on the failure to prove certain documents, which was deemed material evidence in the case. The judgment discussed the provisions of Section 386 and Section 391 of the Criminal Procedure Code, emphasizing that re-trial should only be ordered in exceptional circumstances where the trial was vitiated by serious illegalities or irregularities, or where the prosecutor or accused were prevented from tendering material evidence. The court highlighted the need for additional evidence to be taken sparingly and only in suitable cases, and the limitations on the power to order re-trial.
Fact of the Case:

The petitioner was acquitted by the Court of the Chief Judicial Magistrate, Gurdaspur, but the State appealed the judgment, leading to the Additional Sessions Judge remanding the case back to the Trial Court for a fresh decision, citing the need to prove certain documents which were deemed material evidence in the case.
Finding of the Court:

The court found that the re-trial ordered by the Additional Sessions Judge was not warranted as no exceptional circumstances were pointed out to warrant a remand and consequential re-trial. The court emphasized the need for additional evidence to be taken sparingly and only in suitable cases, and the limitations on the power to order re-trial.
Issues: The issues revolved around the necessity and justification for a re-trial, the interpretation of the provisions of Section 386 and Section 391 of the Criminal Procedure Code, and the circumstances under which re-trial should be ordered.
Ratio Decidendi: The court emphasized that re-trial should only be ordered in exceptional circumstances where the trial was vitiated by serious illegalities or irregularities, or where the prosecutor or accused were prevented from tendering material evidence. The court highlighted the need for additional evidence to be taken sparingly and only in suitable cases, and the limitations on the power to order re-trial.
Final Decision: The order/judgment of remand dated 05.03.2018 passed by the Additional Sessions Judge, Gurdaspur was set aside, and the Sessions Court was directed to hear and decide the Appeal on merits subject to the resorting to taking of additional evidence, if so required, in terms of Section 391 Cr.P.C.

JASJIT SINGH BEDI, J.

The present revision petition has been preferred against the judgment dated 05.03.2018 vide which the Additional Sessions Judge, Gurdaspur has accepted the appeal filed by the State and remanded the case back to the Trial Court, Gurdaspur for a fresh decision by giving an opportunity to the prosecution for proving certain documents.

2. The brief facts of the case are that FIR No.42 dated 08.03.2011 under Sections 465, 466, 468 and 471 IPC, Police Station City, Gurdaspur, came to be registered against the petitioner-Gulbaz Singh son of Amrik Singh with the allegations that he had procured a forged SC Certificate and had used the same. Pursuant to the conclusion of the investigation, a report under Section 173 Cr.P.C. was submitted. The Trial commenced and the petitioner came to be acquitted by the Court of the Chief Judicial Magistrate, Gurdaspur vide judgment dated 01.10.2016.

3. Against the aforementioned judgment of acquittal, the State preferred an appeal and while accepting the appeal, the impugned order of acquittal was set aside and the case was remanded to the Trial Court with a direction to examine witnesses for proving certain documents. The relevant extract of the judgment dated 05.03.2018 passed by the Additional Sessions Judge, Gurdaspur is as under:-

“18. Perusal of record shows that copy of form submitted by accused to Government College of Education, Patiala for seeking admission in B.Ed. Course in scheduled caste category bearing his photograph is lying on record which is marked as PA. It is attested by Principal, Government College of Education, Patiala. It has got annexures Mark PB to PH comprised of photostat copies of secondary school examination, detail marks card, character certificate etc. All have been attested by Principal, Government College of Education, Patiala, but no effort has been made to prove these documents which is material evidence in this case. It appears that due to some inadvertence on behalf of prosecution this material document could not be proved and interest of justice demands that prosecution should be given an opportunity to prove this document which goes to roots of the case. Resultantly, appeal is accepted. Impugned order is set aside. Case is remanded to trial court with a direction to examine the witness for proving admission from, original record might be available with the College and then decide the matter afresh on merits”.

4. The instant revision petition has been preferred against the aforementioned judgment dated 05.03.2018 passed by the Additional Sessions Judge, Gurdaspur.

5. The learned counsel for the petitioner contends that the re-trial as has been ordered can only be done so in exceptional cases. Nothing exceptional has been pointed out in the present case so as to warrant the passing of the impugned judgment. If the Appellate Court had required the taking off /proving off certain documents, it could have resorted to the procedure envisaged under Section 391 Cr.P.C. and could have, thereafter, heard the appeal on merits and passed an appropriate order. He, therefore, contends that the judgment dated 05.03.2018 passed by the Additional Sessions Judge, Gurdaspur, was liable to be set aside. Reliance is placed on ‘Ukhe Kolhe versus State of Maharashtra, 1963 AIR (Supreme Court) 1531, Satyajit Banerjee versus State of West Bengal 2005(1) RCR (Criminal) 723, Pashori Lal versus Punjab State 1980(1) ILR(Punjab) 75, M/s Chennakesha Bandage and ors. versus State of A.P. 2011(8) RCR (Criminal) 1477 and Bhupendera Singh Thakur versus State of Chhattisgarh (CRMP No.172 of 2022 decided on 01.04.2022)’.

6. The learned counsel for the State, on the other hand contends that on account of fault of the prosecution, certain documents were not proved in accordance with law, and therefore, the impugned order/judgment had rightly been passed and ought not to be interfered with.

7. Before proceedings further, it would be apposite to refer to the provisions of Section 386 C