The distinction between conduction of prosecution and participation in the prosecution, and the discretion of the Appellate Court to summon additional evidence under Section 391 of the Cr. P.C.

1. Heard learned counsel for the parties and perused the Misc. Application No. 1434 of 2013 as also the objections thereupon.

2. The above-titled application has been moved by the applicant/complainant on dated 23.09.2013 in the pending Government Appeal No. 305 of 2004. The said appeal was preferred by the State, challenging the impugned judgment and order of acquittal dated 03.07.2004 rendered by Chief Judicial Magistrate, Haridwar in Criminal Case No. 2965 of 2000.

3. It has been prayed by way of the said application that the judgment of acquittal was passed for want of certain documents/papers, which were available in the office of Uttar Pradesh Bar Council, Allahabad. The learned Trial Judge tried its best to call those papers on record but unfortunately, those efforts remained unsuccessful. So, the learned court below was constrained to pass the judgment of acquittal of respondent - Shamim Alam Khan.

4. The said case was initiated by the informant Mr. O.P. Saklani, who is also an advocate in Dehradun Bar. He has moved the instant application in the capacity of informant/ complainant.

5. The question before the Court to be considered is not regarding significance of all those documents, which have been mentioned in the instant application moved by Mr. Lokendra Dobhal, Advocate on behalf of Mr. O.P. Saklani, but it is to be considered, whether Mr. O.P. Saklani or his advocate Mr. Lokendra Dobhal has any authenticity to move such an application. Thus, whether the law permits him to move such an application before the Court and asking it to act upon the same?

6. Learned counsel Mr. Lokendra Dobhal has placed reliance upon the case of Zahira Habibullah H. Sheikh vs. State of Gujarat, (2004) 4 SCC 158 : 2004 Cri. L.J. 2050.

7. The above-cited case is of macabre killing where the Hon'ble Apex Court ordered for the de novo trial. The basic theme behind passing such order was that the entire prosecution machinery was indulged in shielding the accused persons. So, probably the Hon'ble Apex Court while exercising the power vested in it under section 142 of the Constitution of India and passed such an order.

8. The arguments of learned counsel for the appellant have been refuted by the learned counsel for the respondent by placing reliance upon the following judgments:

1. Sudevanand vs. State, 2012 (3) SCC 387 : 2012 Cri. L.J. 1320.

2. Satyajit Banerjee vs. State of West Bengal, 2005 (1) SCC 115 : 2005 Cri. L.J. 648.

In these two cases, Best Bakery reported in 2004 SCC 158, has also been referred to.

9. In the above-mentioned cases, the Hon'ble Apex Court has clarified the de novo trial in the peculiar circumstances of the case. The language of Hon'ble Apex Court is being reproduced below as under:

Since strong reliance has been placed on Best Bakery case (Gujarat riots case) it is necessary to record a note of caution. That was an extraordinary case in which this Court was convinced that the entire prosecution machinery was trying to shield the accused i.e. the rioters. It was also found that the entire trial was a farce. The witnesses were terrified and intimidated to keep them away from the Court. It is in the aforesaid extraordinary circumstances that the Court not only directed a de novo trial of the whole case but made further directions for appointment of the new prosecutor with due consultation of the victims. Retrial was directed to be held out of the State of Gujarat.

The law laid down in Best Bakery case in the aforesaid extraordinary circumstances, cannot be applied to all cases against the established principles of criminal jurisprudence. Direction for retrial should not be made in all or every case where acquittal of accused is for want of adequate or reliable evidence. In Best Bakery case the first trial was found to be a farce and is described as mock trial. Therefore, the direction for retrial was in fact, for a real trial. Such extraordinary situation alone can justify the directions as made by this Court in Best Bakery