Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and Sanjiv Khanna, JJ has answered the following three important questions on the revisional jurisdiction of the High Court:

Whether the High Court in exercise of the revisional jurisdiction under Section 401 Cr.P.C. can set aside the order of acquittal and convicting the accused by converting the finding of acquittal into one of conviction?

The Court held that sub-section (3) of Section 401 Cr.P.C. prohibits/bars the High Court to convert a finding of acquittal into one of conviction. Though the High Court has revisional power to examine whether there is manifest error of law or procedure etc., however, after giving its own findings on the findings recorded by the court acquitting the accused and after setting aside the order of acquittal, the High Court has to remit the matter to the trial Court and/or the first appellate Court, as the case may be.

Referring to the ruling in K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC 1788, the Court noticed that if the order of acquittal has been passed by the trial Court, the High Court may remit the matter to the trial Court and even direct retrial. However, if the order of acquittal is passed by the first appellate court, in that case, the High Court has two options available, (i) to remit the matter to the first appellate Court to rehear the appeal; or (ii) in an appropriate case remit the matter to the trial Court for retrial and in such a situation the procedure in decision in K. Chinnaswamy Reddy can be followed.

In K. Chinnaswamy, it was held that,

“It will depend upon the facts of each case whether the High Court would order the appeal court to rehear the appeal or would order a retrial by the trial court. Where, as in this case, the entire evidence is there and it was the appeal court which ruled out the evidence that had been admitted by the trial court, the proper course in our opinion is to send back the appeal for rehearing to the appeal court. In such a case the order of the trial court would stand subject to the decision of the appeal court on rehearing. In the present case it is not disputed that the entire evidence has been led and the only defect is that the appeal court wrongly ruled out evidence which was admitted by the trial court. In the circumstances we are of opinion that the proper course is to direct the appeal court to rehear the appeal and either maintain the conviction after taking into consideration the evidence which was ruled out by it previously or to acquit the accused if that is the just course to take. We should like to add that the appeal court when it rehears the appeal should not be influenced by any observations of the High Court on the appreciation of the evidence and should bring to bear its own mind on the evidence after taking into consideration that part of the evidence which was considered inadmissible previously by it.”

In a case where the victim has a right of appeal against the order of acquittal, now as provided under Section 372 Cr.P.C and the victim has not availed such a remedy and has not preferred the appeal, whether the revision application is required to be entertained at the instance of a party/victim instead of preferring an appeal?

After the amendment in Section 372 Cr.P.C. after 2009 and insertion of proviso to Section 372 Cr.P.C., a victim has a statutory right of appeal against the order of acquittal. Therefore, no revision shall be entertained at the instance of the victim against the order of acquittal in a case where no appeal is preferred and the victim is to be relegated to file an appeal. Even the same would be in the interest of the victim himself/herself as while exercising the revisional jurisdiction, the scope would be very limited, however, while exercising the appellate jurisdiction, the appellate Court would have a wider jurisdiction than the revisional jurisdiction. Similarly, in a case where an order of acquittal is passed in any case instituted upon complaint, the complainant (other than victim) can prefer an appeal against the order of acquittal as provided under sub-section (4) of Section 378 Cr.P.C., subject to the grant of special leave to appeal by the High Court.

As observed in Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752, so far as the victim is concerned, the victim has not to pray for grant of special leave to appeal, as the victim has a statutory right of appeal under Section 372 proviso and the proviso to Section 372 does not stipulate any condition of obtaining special leave to appeal like subsection (4) of Section 378 Cr.P.C. in the case of a complainant and in a case where an order of acquittal is passed in any case instituted upon complaint. The right provided to the victim to prefer an appeal against the order of acquittal is an absolute right.

Hence, in a case where the victim and/or the complainant, as the case may be, has not preferred and/or availed the remedy of appeal against the order of acquittal as provided under Section 372 Cr.P.C. or Section 378(4), as the case may be, the revision application against the order of acquittal at the instance of the victim or the complainant, as the case may be, shall not be entertained and the victim or the complainant, as the case may be, shall be relegated to prefer the appeal as provided under Section 372 or Section 378(4), as the case may be.

While exercising the powers under sub-section (5) of Section 401 Cr.P.C. treating the revision application as petition of appeal and deal with the same accordingly, the High Court is required to pass a judicial order?

The High Court may treat the application for revision as petition of appeal and deal with the same accordingly is concerned, firstly the High Court has to pass a judicial order to treat the application for revision as petition of appeal. The High Court has to pass a judicial order because sub-section (5) of Section 401 Cr.P.C. provides that if the High Court is satisfied that such revision application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do. While treating with the application for revision as petition of appeal and deal with the same accordingly, the High Court has to record the satisfaction as provided under sub-section (5) of Section 401 Cr.P.C.

Therefore, where under the Cr.P.C. an appeal lies, but an application for revision has been made to the High Court by any person, the High Court has jurisdiction to treat the application for revision as a petition of appeal and deal with the same accordingly as per sub-section (5) of Section 401 Cr.P.C., however, subject to the High Court being satisfied that such an application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do and for that purpose the High Court has to pass a judicial order, may be a formal order, to treat the application for revision as a petition of appeal and deal with the same accordingly.

[Joseph Stephen v. Santhanasamy, 2022 SCC OnLine SC 90, decided on 25.01.2022]


*Judgment by: Justice MR Shah


Counsels

For Accused: Senior Advocate S. Nagamuthu

For State: Advocate Dr. Joseph Aristotle

Case BriefsSupreme Court

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

  1. The Appellate Court may direct a retrial only in ‘exceptional’ circumstances to avert a miscarriage of justice;
  2. 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;
  3. 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;
  4. 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;
  5. 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”

  1. 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;
  2. 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.
  3. 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;
  4. 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
  5. 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]

_____________________________________________________________________________________________

Counsels:

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

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: In a case where an Armed Force Tribunal ordered retrial on the ground that the procedure prescribed in Rule 180 of the Army Rules, 1954 had not been followed, the bench of L. Nageswara Rao and Ajay Rastogi, JJ has held that non-compliance of Rule 180 cannot be a ground for ordering a re-trial as the Tribunal does not have jurisdiction to direct re-trial on any other ground except that mentioned in Section 16(2) of the Armed Forces Tribunal Act, 2007.

The Court was hearing a case where, in a firing incident, a soldier (respondent) killed a fellow soldier, while he himself sustained gunshot injuries. The General Court Martial convicted the respondent for murder and for attempting to commit suicide. He was sentenced to suffer imprisonment for life and to be dismissed from service. The respondent then challenged the said decision before the Armed Force Tribunal, primarily, on the ground of non-compliance of Rule 180 of the Rules. It was held by the Tribunal that Rule 180 provides that a person against whom an inquiry is conducted to be present throughout the inquiry. The Tribunal concluded that the entire trial against the Respondent is vitiated as there was no doubt that the Respondent was denied permission to be present when statements of witnesses were being recorded before the Court of Inquiry.

Rule 180 deals with the procedure for inquiry where the character of a person who is subject to the Act is involved. When an inquiry affects the character or military reputation of a person who is subject to the Act, full opportunity has to be provided to the person throughout the inquiry, of making any statement, of giving any evidence he may wish to make or give, and of cross-examining any evidence.

The power conferred on the Tribunal to direct re-trial by the Court Martial is only on the grounds mentioned in Section 16(2). The Tribunal is competent to direct re-trial only in case of evidence made available to the Tribunal was not produced before the Court Martial and if it appears to the Tribunal that the interests of justice requires a re-trial.

When the matter reached before the Supreme Court, appellant had argued that As the Respondent was given an opportunity to cross-examine witnesses as provided in Rule 22 and during the Court Martial proceedings which he did not utilize, there is no failure of justice. It was further submitted that Court of Inquiry is only for collection of evidence and any violation of the procedure prescribed under Rule 180 does not vitiate the proceedings of the Court Martial.

The respondent, on the other hand, argued that the collection of evidence by the Court of Inquiry is a crucial stage during which the accused is entitled to be provided with an opportunity as contemplated in Rule 180. Violation of the procedure prescribed in Rule 180 would render the entire proceedings void.

Considering the provisions in question and various rulings, the Court concluded:

(a) The proceedings of a Court of Inquiry are in the nature of a fact-finding inquiry conducted at a pre-investigation stage;

(b) The accused is entitled to full opportunity as provided in Rule 180;

(c) As a final order of conviction is on the basis of a trial by the Court Martial, irregularities at the earlier stages cannot be the basis for setting aside the order passed by the Court Martial;

(d) If the accused raises a ground of non-compliance of Rule 180 during the framing of charge or during the recording of summary of evidence, the authorities have to rectify the defect as compliance of the procedure prescribed in Rule 180 is obligatory.

It, hence, held that the Tribunal has competence only to order re-trial by the Court Martial and that there is no power conferred on the Tribunal to direct the matter to be remanded to a stage prior to the Court Martial proceedings.

[Union of India v. Ex. No. 3192684 W. Sep. Virendra Kumar, 2020 SCC OnLine SC 12, decided on 07.01.2020]

Case BriefsSupreme Court

Supreme Court: Clearing the air over the power of the Courts to order “retrial”, the Court said that though the word “retrial” is used under Section 386(b)(i) Cr.P.C., the powers conferred by this clause is to be exercised only in exceptional cases, where the appellate court is satisfied that the omission or irregularity has occasioned in failure of justice.

In the present the accused in a dowry death case had appealed against his conviction before the Patna High Court. The High Court, however, remitted the case to the Trial Court for retrial on account of certain lapses on the part of Investigating Officer/trial court. Disagreeing with the view of the High Court, the bench of Dipak Misra and R. Banumathi, JJ said that the High Court pointed out certain lapses; but has not stated as to how such alleged lapses has resulted in miscarriage of justice necessitating retrial. Certain lapses either in the investigation or in the ‘conduct of trial’ are not sufficient to direct retrial. The High Court being the First Appellate Court is duty bound to examine the evidence and arrive at an independent finding based on appraisal of such evidence and examine whether such lapses actually affect the prosecution case; or such lapses have actually resulted in failure of justice.

It was further explained that the circumstances that should exist for warranting a retrial must be such that where the trial was undertaken by the Court having no jurisdiction, or trial was vitiated by serious illegality or irregularity due to the misconception of nature of proceedings. An order for retrial may be passed in cases where the original trial has not been satisfactory for some particular reasons such as wrong admission or wrong rejection of evidences or the Court refused to hear certain witnesses who were supposed to be heard. [Ajay Kumar Ghoshal v. State of Bihar, 2017 SCC OnLine SC 74 decided on 31.01.2017]