Supreme Court: The 3-judge bench of Dr. DY Chandrachud*, Vikram Nath and BV Nagarathna, JJ has lucidly laid down the principles governing the power of the Courts to direct re-trial, Joint Trial and Separate trial and has held retrial and joint trial can be ordered only in exceptional circumstances.
Principles governing Retrial
- The Appellate Court may direct a retrial only in ‘exceptional’ circumstances to avert a miscarriage of justice;
- Mere lapses in the investigation are not sufficient to warrant a direction for retrial. Only if the lapses are so grave so as to prejudice the rights of the parties, can a retrial be directed;
- A determination of whether a ‘shoddy’ investigation/trial has prejudiced the party, must be based on the facts of each case pursuant to a thorough reading of the evidence;
- It is not sufficient if the accused/ prosecution makes a facial argument that there has been a miscarriage of justice warranting a retrial. It is incumbent on the Appellant Court directing a retrial to provide a reasoned order on the nature of the miscarriage of justice caused with reference to the evidence and investigatory process;
- If a matter is directed for re-trial, the evidence and record of the previous trial is completely wiped out; and
The following are some instances, not intended to be exhaustive, of when the Court could order a retrial on the ground of miscarriage of justice :
a) The trial court has proceeded with the trial in the absence of jurisdiction;
b) The trial has been vitiated by an illegality or irregularity based on a misconception of the nature of the proceedings; and
c) The prosecutor has been disabled or prevented from adducing evidence as regards the nature of the charge, resulting in the trial being rendered a farce, sham or charade.
Ukha Kolhe v. State of Maharashtra, (1964) 1 SCR 926 [Constitution Bench]
“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 re-trial 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 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. [..]”
Principles governing joint trial and separate trials
State of Andhra Pradesh v. Cheemalapati Ganeswara Rao, AIR 1963 SC 1850
“… a separate trial is the rule and a joint trial is the exception. However, in case the accused persons commit different offences forming a part of the same transaction, a joint trial would be the rule unless it is proved that joint trial would cause difficulty”
- Section 218 provides that separate trials shall be conducted for distinct offences alleged to be committed by a person. Sections 219 – 221 CrPC provide exceptions to this general rule. If a person falls under these exceptions, then a joint trial for the offences which a person is charged with may be conducted. Similarly, under Section 223 CrPC, a joint trial may be held for persons charged with different offences if any of the clauses in the provision are separately or on a combination satisfied;
- While applying the principles enunciated in Sections 218 – 223 CrPC on conducting joint and separate trials, the trial court should apply a two-pronged test, namely, (i) whether conducting a joint/separate trial will prejudice the defence of the accused; and/or (ii) whether conducting a joint/separate trial would cause judicial delay.
- The possibility of conducting a joint trial will have to be determined at the beginning of the trial and not after the trial based on the result of the trial. The Appellate Court may determine the validity of the argument that there ought to have been a separate/joint trial only based on whether the trial had prejudiced the right of accused or the prosecutrix;
- Since the provisions which engraft an exception use the phrase ‘may’ with reference to conducting a joint trial, a separate trial is usually not contrary to law even if a joint trial could be conducted, unless proven to cause a miscarriage of justice; and
- A conviction or acquittal of the accused cannot be set aside on the mere ground that there was a possibility of a joint or a separate trial. To set aside the order of conviction or acquittal, it must be proved that the rights of the parties were prejudiced because of the joint or separate trial, as the case may be.
[Nasib Singh v. State of Punjab, 2021 SCC OnLine SC 924, decided on 08.10.2021]
Amicus curiae: Senior Advocate D Bharat Kumar
For appellant: Advocate Vipin Gogia
For State of Punjab: Advocate Uttara Babbar
For other accused: Advocates Nishesh Sharma, Narender Kumar Verma
*Judgment by: Justice Dr. DY Chandrachud