Ajay Gupta vs State Thr. C.B.I.
2018 Latest Caselaw 3537 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                  ORDER RESERVED ON : 13th FEBRUARY, 2018
                        DATE OF DECISION : 14th JUNE, 2018

CRL.A. 469/2003 & CRL. M.A. 3025/2011
AJAY GUPTA                                           ..... Petitioner

                         Through      Mr. Vijay Shukla, Advocate.

                         versus

STATE THR. C.B.I.                                  ..... Respondent

                         Through:     Ms. Rajdipa Behura, SPP for
                                      CBI with Mr. Philomon Kani,
                                      Ms. Kriti Handa, Ms. Hansika
                                      Sahu, Ms. Damini K., Advs.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
                              ORDER

ANU MALHOTRA, J.

1. The Criminal Appeal No. 469/2003 was filed by the appellant against the impugned judgment dated 05.07.2003 of the then Special Judge, Delhi in C.C. No. 68/97 in R.C. No. 80(A)/96/CBI/ACB/ N. Delhi whereby the appellant was held guilty and convicted for the offences punishable under Section 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 and vide the impugned order on sentence dated 07.07.2003 was sentenced to rigorous imprisonment for a period of four years with a fine of Rs.500/- each under Section 7

and Section 13(2) of the Prevention of Corruption Act, 1988 with directionS that the substantive sentences would run concurrently and in the event of default of fine, the convict i.e. the appellant would undergo rigorous imprisonment for a period of three months of each count.

2. During the pendency of the appeal vide an application bearing Crl. M. No. 8205/2005 under Section 311 r/w Section 391 and Section 482 of the of the Criminal Procedure Code, 1973 filed by the appellant seeking issuance of the directions for recording additional evidence in the interests of justice and to avoid miscarriage of justice, this Court whilst observing that it was a fit case in which exercise of its powers under Section 311 r/w Section 391 of the of the Criminal Procedure Code, 1973 should be exercised, directed the recording of additional evidence by the Trial Court as prayed by the appellant and the Trial Court was directed to examine Dr. C.S. Prabhu, Dr. Bipin Kumar, Dr. Sumit Sural, Kokan Kumar Mandal, the injured, In-Charge VRK (South District), New Delhi with records and In-Charge, HAPR Branch, VI Battalion, DAP with records and to send the recorded evidence to this Court for the purpose of disposal of this appeal.

3. The appellant had submitted during the course of the submissions made in relation to the application bearing Crl. M. No. 8205/2005 under Section 311 r/w Section 391 and Section 482 of the of the Criminal Procedure Code, 1973 that the prosecution case against him was false as he was not present at the time of the alleged raid and at the time of the payment of bribe money to him he was not present at PS Badarpur and in fact he was present at Safdarjung

Hospital in connection with the investigation of a case and contended that the records of the hospital and police station can establish that he was not present at the time of alleged raid. The appellant had further contended that he was entitled to produce the witnesses and evidence.

4. In terms of the directions dated 22.10.2005 of this Court, the Trial Court of the then Special Judge, Delhi had recorded the additional evidence of six additional witnesses i.e. Dr. C.S. Prabhu, Dr. Bipin Kumar, Dr. Sumit Sural, Kokan Kumar Mandal, the injured, In-Charge VRK (South District), New Delhi with the records and In- Charge, HAPR Branch, VI Battalion, DAP and the statements so recorded, were forwarded to this Court.

5. The application bearing Crl. M. No. 3637/2007 was then filed by the appellant seeking retrial of the case from the stage of recording the statement of the accused, in view of the additional evidence recorded but on 06.11.2009, the said application was dismissed as not pressed in view of the directions already given by this Court vide order dated 22.10.2005 in Crl. M. No. 8205/2005 directing the Trial Court to place the additional evidence before this Court and for the purposes of final disposal of the appeal and thus the matter was listed for final disposal on 28.01.2010 at the end of the Board.

6. The application bearing Crl. M.A. No. 549/2010 was however once again filed on behalf of the appellant under Section 386(b)(i) r/w Section 482 of the Code of Criminal Procedure, 1973 by the appellant seeking retrial of the case from the stage of the recording of the statement of the accused i.e. appellant Ajay Gupta under Section 313 of the Code of Criminal Procedure, 1973 onwards and passing of the

judgment afresh thereafter, which application vide order dated 26.04.2010 of this Court was dismissed observing to the effect : -

"The Appeal was filed in 2003. By the Order dated 22 nd October, 2005, application of the appellant under Section 311, Cr.P.C. was allowed and statements of defence witnesses were recorded. The effect of the said statements will be examined at the time of hearing of the Appeal.

Evidence recorded under Section 311, Cr.P.C. pursuant to the Order dated 22nd October, 2005, is not sufficient and a valid ground to set aside the impugned judgment and to remand the matter back for a fresh decision. It may be noted that a similar application, being Crl.M.A. No. 3637/2007 was also filed by the appellant but was not pressed in view of the specific direction given in the Order dated 22nd October, 2005 for recording of additional evidence. In fact, during the course of hearing today, learned counsel for the appellant submitted that the matter was heard and even reserved for judgment vide Order dated 19th February, 2009.

Application is dismissed."

and the matter was listed in the category of "Regular Matters" in the week commencing 19th July, 2010.

7. The hearing in the appeal thus was to commence but Crl. M.A. 3025/2011 i.e. the present application under Section 482 of the Code of Criminal Procedure, 1973 under consideration was filed by the appellant again seeking fresh judgment from the Trial Court in the light of additional defence evidence having come on record. During the pendency of the said application, the applicant had filed another application Crl. M.A. 18511/2012 filed by the appellant seeking preponement of the date of hearing, which was dismissed as withdrawn on 06.11.2012 and the matter had been brought on Board

for hearing on 23.05.2013 when the appellant did not appear and non- bailable warrants against him and notice to the surety to be executed by the Inspector of the respondent were directed, returnable on 11-07- 2013 and the matter having been fixed in the category of "Regular Matters" as per its own turn. On the applications Crl. M.A. nos. 9213/2013 and 9214/2013 submissions were made on behalf of the appellant that he could not appear in the Court due to departmental proceedings against him and the non-bailable warrants against him were recalled and the matter was listed for arguments on 26.08.2013. Before the hearing could once again commence, Crl. M.A. no. 10082/2013 under Section 391 r/w Section 311 r/w Section 482 of the Code of Criminal Procedure, 1973 was filed by the appellant seeking permission to lead additional evidence qua which application it was directed vide order dated 14.07.2015 of this Court that the said application would be considered at the time of the hearing of the appeal whereafter the appellant filed another application Crl. M.A. 13414/16 under Sections 243/311 of the Code of Criminal Procedure, 1973 for recalling the witnesses PW2 Raj Kumar, PW-3 Satpal and PW5 Inspector CBI R.V.S. Lahmor. Vide order dated 15.09.2016 of this court, the said application was disposed of with direction to the Trial Court to examine the three witnesses namely PW2 Raj Kumar, PW-3 Satpal and PW5 Inspector CBI R.V.S. Lahmor with it having been directed that the appellant shall not seek or be granted any undue adjournment by the Trial Court and the further evidence of the said witnesses shall be recorded without any delay whatsoever. It was further made clear by this Court vide order dated 15.09.2016 that this

Court had not appreciated the evidence on record, much less the evidence sought to be brought on record and any observations made in this order had been made only for the purpose of deciding the present application i.e. Crl. M.A. 13414/16. Pursuant to the direction dated 15.09.2016 of this Court, the testimony of PW-3 Satpal and PW5 Inspector CBI R.V.S. Lahmor were recorded by the Trial Court and the statement alongwith the relevant record were sent by the then Special Judge, Delhi to this Court with it having been reported vide letter dated 11.11.2016 of the then Special Judge, Delhi to the effect that the statement of PW2 Raj Kumar could not be examined as he had died. Vide order dated 11.04.2017, a prayer made by the appellant seeking an early hearing of the appeal was declined. To similar effect were the directions dated 14.07.2017 qua Crl. M.A. No. 10997/2017 filed by the appellant seeking an early hearing observing to the effect that the matters were being heard and this appeal would be heard as per its own priority. However, in view of the order dated 28.08.2017 of the Hon‟ble Supreme Court in Special Leave to Appeal (Crl.) No. 6138/2017 whereby it was observed to the effect : -

"Criminal appeal filed by the petitioner pertains to the year 2003. There is a justifiable reason for its early hearing. However, we find that the High Court has not granted prayer for early hearing of the appeal as prayed for by the petitioner. We are of the opinion that the matter should be taken up for hearing by the High Court. In this behalf, the petitioner is permitted to mention the matter before the Acting Chief Justice of the Delhi High Court.

The Special Leave Petition is disposed of.

Pending application(s), if any, stands disposed of accordingly."

8. The application Crl. M.A. 14397/2017 filed by the appellant seeking the disposal of the appeal at the earliest was disposed of with direction to the learned counsel for the appellant to commence arguments on the appeal with it having been directed to the learned counsel for the parties to file the brief written synopsis by referring the page numbers of LCR with relevant case law, if any, before the next date of hearing with advance copy to the other side with the matter having been renotified for 19.09.2017 on which date it was directed that the hearing in the matter would continue on day to day basis till the arguments in the matter were complete and that till the arguments are complete, no further adjournment would be permitted. The hearing in the matter could thereafter commence only on 08.01.2018 and was heard on 09.01.2018 and on 10.01.2018 and had been renotifed for the date 16.01.2018 on which date and thereafter on 13.02.2018 submissions were made on behalf of either side qua Crl. M.C. no. 3025/11, which is now presently under consideration.

9. Vide the present application Crl. M.A. 3025/2011 presently under consideration, the appellant seeks setting the aside of the impugned judgment dated 05.07.2003 and impugned order on sentence dated 07.07.2003 submitting to the effect that vide order dated 29.08.2003, the sentence had been directed to remain suspended during the pendency of the appeal. The appellant now submits that at the time when Crl. M.A. 3025/2011 had been filed, the evidence of six additional witnesses were recorded by the Trial Court in terms of the order dated 22.10.2005 of this Court along with documentary

evidence, which includes the departmental enquiry report in which the appellant has been exonerated and submitted further that the defence of the appellant right from the inception of the proceedings against him was that of alibi and denial of presence at the scene at the time of the raid conducted by the CBI in as much as the appellant was busy conducting an enquiry in relation to DD Entry No. 3-A of PS Badarpur which related to a road accident on 08.11.1996 and that he had also gone to the Safdarjung Hospital for recording of the statement of the injured Kokan Mandal and had also recorded the statement of the injured after the endorsement was made at 4.40 p.m. by Dr. Sumit Sural of the Safdarjung Hospital declaring the patient „fit for making statement‟ and that the appellant had made an endorsement for registration of the case and had sent the rukka at 6.00 p.m. through Ct. Ram Bachan, DHG and it was mentioned in the said endorsement itself that the appellant had developed cold and temperature during the day and that he was under treatment from the Safdarjung Hospital vide OPD Slip no. 180610 and that the doctor had advised the appellant to be on rest for two days and that the appellant had requested that further investigation of the case be entrusted to some other officials and thereafter he had proceeded on medical rest and that thereafter the appellant had surrendered in the Court on 18.11.1996 on coming to know that the CBI was after him to arrest him in the case bearing no. R.C. No. 80(A)/96/CBI/ACB/ N. Delhi. He has since been convicted and sentenced vide judgment dated 05.07.2003 and order on sentence dated 07.07.2003 respectively qua the offences punishable under Section 7 and 13(1)(d) r/w Section 13(2) of the Prevention of

Corruption Act, 1988 claiming that he had taken a bribe and thrown away the currency notes on the ground and ran away. The appellant has further submitted that neither he was arrested at the spot nor any money was recovered from him and it has inter alia been submitted on behalf of the appellant that during the course of the arguments on the application under consideration that after the recording of six additional witnesses AW1 to AW6 in terms of the order dated 22.10.2005 of this Court, there are three other witnesses that have been examined pursuant to order dated 15.09.2016 of this Court and it has thus been submitted on behalf of the appellant that in the interest of justice he seeks setting the aside of the impugned judgment and order on sentence and that the Trial Court ought to be directed to pass a fresh judgment after considering the additional evidence that has been recorded pursuant to the order dated 22.10.2005 with the oral prayer made during the course of the submissions also seeking that a fresh judgment be also passed in terms of the evidence recorded by the Trial Court in terms of the order dated 15.09.2016 of this Court submitting to the effect that there were nine witnesses that have been examined after the impugned judgment and impugned order on sentence dated 05.07.2003 and 07.07.2003 respectively.

10. The reply on behalf of the CBI to the application was filed opposing the prayer vehemently.

11. Arguments have been addressed on behalf of either side by the learned counsel i.e. Learned counsel for the appellant Mr. Vijay Shukla, Advocate and on behalf of the CBI Ms. Rajdipa Behura, SPP for CBI.

12. It has been submitted on behalf of the appellant that the proceedings dated 22.10.2005 and the order dated 26.04.2010 of this Court are not an embargo in any manner but to direct the Trial Court for pronouncement of fresh judgment on the basis of the additional evidence recorded, it having been submitted further to the effect that the additional evidence, which has been recorded clearly points out to the innocence of the appellant and required a fresh judgment apparently and not a mere determination during the pendency of the appeal by the Trial Court and it has further been submitted on behalf of the appellant that denial of a fresh judgment by the Trial Court in view of evidence in his favour would be violative of his rights under Article 14 and 21 of the Constitution of India and it would be discriminatory against him and violative of his fundamental rights.

13. Reliance was thus placed on behalf of the appellant on the verdict of this Court in A.S. Impex Vs. Delhi High Court, 2003 (107) DLT 734, A.R. Antulay Vs. R.S. Nayak (1988) 2 SCC 602, Nahar Industrial Enterprises Ltd. Vs. Hong Kong and Shanghai Banking Corporation (2009) 8 SCC 646 and the verdict of the Hon‟ble Supreme Court in K. Pandurangan Vs. S.S.R. Velusamy (2003) 8 SCC 625 and the verdict of the Hon‟ble Supreme Court in Kuldeep Singh Vs. State, (2008) 2 JCC 797, to contend that the statutory right of appeal to the appellant cannot be denied without compliance of the procedure established by law under Article 21 of the Constitution of India and such denial of the rights was a violation under Article 14 of the Constitution of India where the Court was the first Court did not consider the facts and aspect of the case whilst considering merits

thereof and it was submitted that the appellant would have to be held to have been entitled to an opportunity of agitating its case of facts against the judgment of Trial Court and it was thus submitted on behalf of the appellant that the matter be remitted to the Trial Court for retrial and that a fresh judgment on the basis of additional evidence recorded in the form of testimonies of nine witnesses.

14. On behalf of the CBI, it has been submitted to the effect that adequate evidence is available to prove that the appellant was present at the police station Badarpur at the time of the raid and he had demanded and accepted the bribe from the complainant and once the appellant got alarmed after giving the signal, the appellant had run away after throwing the money after taking it out from the right side pant pocket where he had earlier kept the same on the ground in the premises of the PWD godown located behind the police station building after jumping over the wall of the PWD premises.

15. The CBI whilst admitting that the appellant was on emergency duty on the given date and the investigation revealed that an accident had been reported to the police vide DD No. 3A and the same was entrusted to the appellant but contended that there is no evidence to suggest that the appellant remained with the injured throughout. Reliance was placed on behalf of the CBI on the proceedings dated 22.10.2005 of this Court whilst disposing of Crl. M. No. 8205/2005 whereby directing the Trial Court to record additional evidence and place the additional evidence before this Court for the purposes of final disposal of the present appeal. Reliance was also placed on behalf of the CBI on the order on the application bearing

Crl. M. No. 3637/2007 filed by the appellant seeking retrial of the case from the stage of recoding statement of the accused, in view of the additional evidence recorded which on 06.11.2009 was dismissed as not pressed in view of the directions already given by this Court vide order dated 22.10.2005 in Crl. M. No. 8205/2005 directing the Trial Court to place the additional evidence before this Court for the purposes of final disposal of the appeal. It has further been submitted on behalf of the CBI that the application of the appellant is not maintainable and is an abuse of the process of law and deserves to be dismissed. Inter alia it has been submitted on behalf of the CBI that the application seeking the setting aside of the judgment and order on sentence and seeking a direction to the Trial Court to pass a fresh judgment is not justified and that there is absolutely no need nor any justification to remand the case back before Trial Court. During the course of the submissions made on behalf of the CBI, reliance was placed on the verdict of the High Court of Gauhati (Agartala Bench) in Crl. Rev. P. No. 49 of 1997 in the case titled as Chandra Lal Das and Ors. Vs. State of Tripura 2003 CriLJ 2162 and on the verdict of the Hon‟ble Supreme Court in Ajay Kumar Ghoshal and Ors. Vs. State of Bihar and Ors. AIR 2017 SC 804 in support of its contentions that the prayer made by the appellant seeking retrial ought not to be granted. It is essential to observe that the verdict of the Hon‟ble Supreme Court relied upon on behalf of the appellant in the case titled as K. Pandurangan Vs. S.S.R. Velusamy and Another (2003) 8 SCC 625 and the other catena of verdicts relied upon as adverted to above relate to the facts and circumstances of the said cases especially as in

the case in K. Pandurangan Vs. S.S.R. Velusamy and Another (supra), it was observed by the Hon‟ble Supreme Court to the effect that vide its judgment the lower Appellate Court did not apply its mind to the factual aspects of the case and merely considered the question of quantum of sentence and grant of submission and it was thus observed whilst placing reliance on A.R. Antulay Vs. R.S. Nayak (1988) 2 SCC 602 wherein it had been held that the deprivation of statutory the right of the appeal would amount to denial of procedure established by law and further such denial violates the guarantee of equal protection of law under Article 14 of the Constitution of India and it was observed to the effect : -

"7. The second question that has come up for our consideration in this case pertains to the right of the lower appellate court to grant various remissions under various notifications issued by the State, reference to which has been made by the lower appellate court in its judgment. The right to grant remission is governed by the provisions of Section 432 of the Code of Criminal Procedure which vests the said power with appropriate Government and not in any court. Even that power is subject to conditions enumerated in that Section and one such condition is that an accused person who is being granted remission of sentence will have to be in custody, when the decision to grant remission is made by the Government concerned. See proviso to Section 432(5) of the Code which was not the factual position in this case apart from the fact the Court has no jurisdiction of remission of sentence under Section 432 of the Code. Therefore, in our opinion, the first appellate court was not justified in granting the remission.

8. This leaves us to consider the last question argued before us by the learned counsel for the appellant that the

appellants had a right of appeal on facts conferred statutorily by the Code of Criminal Procedure wherein they could have convinced the appellate court that the findings of the court below are erroneous and not based on facts. He pointed out from the judgment of the lower appellate court that there has been no such consideration by the said court. He submitted that if we are not inclined to accept his argument in regard to the right of the appellate court to grant remission, then he is entitled to the benefit of hearing before the appellate court on merits of the case. On facts, he submitted that the contention of the learned counsel for the State that there was no argument addressed by his counterpart on merits of the case before the lower appellate court is not correct and the same is also not so reflected in the judgment of the said court. We have also perused the said judgment and we do not think there is any application of mind in regard to the factual aspect of the case by the lower appellate court which has merely proceeded to consider the quantum of sentence and grant of remission. Apart from the fact that right of appeal is statutorily provided by the Code, a Constitution Bench of this Court in the case of A.R.Antulay vs. R.S.Nayak & Anr. (1988 2 SCC 602) has held that deprivation of one statutory right of appeal would amount to denial of procedure established by law under Article 21, and further such denial violates the guarantee of equal protection of law under article 14 of the Constitution. Placing reliance on the said judgment of this court, we are of the opinion that since the lower appellate court, which was the first court of appeal, has not considered the factual aspect of the case while considering the appeal, we think the appellants have been denied an opportunity of agitating their case on facts against the judgment of the trial court. In such circumstances, we think the prayer of the learned counsel is justified. Therefore, we allow these appeals, set aside the impugned judgment of the High Court and remand the matter back to the Court of the Sessions Judge at Thiruchirapalli who will hear all appeals which were filed against the judgment and conviction made by the VIth Additional Assistant Sessions Judge, Thiruchirapalli in

Calender Case No 2 of 1988 and other connected matters. Since the matter is very old, we think it appropriate to direct the said appellate court to dispose of the same on merits within three months from the receipt of the records.

9. Ordered accordingly."

16. Thus it is apparent that in K. Pandurangan Vs. S.S.R. Velusamy and Another (supra) the Hon‟ble Supreme Court had opined that the lower Appellate Court of Sessions had not considered the factual aspects of the case which had resulted in denial of opportunity to the appellants to agitate their case on facts against the judgment of the Trial Court and thus the matter was remanded back to the Court of Sessions to hear the appeal which was filed against the conviction. The facts of the case thus relied upon on behalf of the appellant are distinguishable from the facts of the instant case.

17. Section 386 of the Code of Criminal Procedure, 1973 prescribes the powers of the Appellate Court to the effect : -

"386. Power of the Appellate Court. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-

(a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction-

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the Same;

(c) in an appeal for enhancement of sentence-

(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re- tried by a Court competent to try the offence, or

(ii) alter the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse such order;

(e) make any amendment or any consequential or incidental order that may be just or proper; Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal."

18. Section 391 of the Code of Criminal Procedure, 1973 prescribes

the powers of the Appellate Court to the effect : -

"391. Appellate Court may take further evidence or direct it to be taken.

(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.

(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry."

19. Section 391 of the Code of Criminal Procedure, 1973 thus makes it apparently clear that if the Appellate Court including the High Court thinks additional evidence to be necessary it shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. It is essential to observe that the provision of Section 391 of the Code of Criminal Procedure, 1973 provides the Appellate Court to get additional evidence recorded by the Court of the Magistrate or by the Court of Sessions, and itself lays down no procedure for remand back of the proceedings for retrial and

thus the addition of such words as remand for trial for retrial which are not as on date included in the provisions of Section 391 of the Code of Criminal Procedure, 1973 ought not to be added, nor can any such retrial or remitting of the proceedings therefore,- be thus granted.

20. The High Court of Gauhati (Agartala Bench) in Crl. Rev. P. No. 49 of 1997 in the case titled as Chandra Lal Das and Ors. Vs. State of Tripura 2003 CriLJ 2162 observes to the effect : -

"10. In view of the above quoted provisions of law it is held that the Appellate Court has two options either (1) it may remand the case for re-trial afresh on hearing the appeal against conviction ; or (2) it may direct the court below to record additional evidence, if necessary and thereafter to send the matter before the Appellate Court which on receipt of the evidences so recorded afresh by the court below, shall proceed to dispose of the appeal.

11. In the instant case, the remand of the case ordered by the learned Additional Sessions Judge is unknown and contrary to the provision of law as discussed above. It appears from the perusal of the Judgment that the learned Appellate Court has not exercised the power in ordering re-trial in terms of the above provisions of law and such order of remand is not permissible under the Code, because once a retrial is permitted by the Appellate Court, the evidence already on record is deemed to be obliterated off from the record. More so, the power of retrial should be exercised only in exceptional cases where the Appellate Court is satisfied that the Court trying the case lacks jurisdiction or trial has been vitiated due to certain serious irregularities or illegalities. It is settled law that this power cannot be exercised for allowing the prosecution to fill up the lacuna in the prosecution case. In Ukha Kolhe, Appellant v. The State of Maharastra, Respondent, reported in AIR 1963 SC 1531 the Hon'ble Apex Court while dealing with a case of similar nature observed at paragraph 11 as follows :

"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 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."

21. After adverting to the provisions of Section 391 of the Code of Criminal Procedure, 1973, the observations of the Hon‟ble Supreme Court in Ukha Kolhe Vs. The State of Maharastra, Respondent, reported in AIR 1963 SC 1531 vide para 11 thereof were relied upon which as detailed elsewhere hereinabove make it apparent, that if the additional evidence is necessary to be taken and is so taken pursuant to the orders of this Court, it would be for this Court to appreciate the said evidence so directed to be recorded in terms of Section 391 of the Code of Criminal Procedure, 1973 in view of the verdict in Ajay Kumar Ghoshal and Ors. Vs. State of Bihar and Ors. AIR 2017 SC 804 which also postulates clearly as is clear from the provision of Section 386 (b) of the Code of Criminal Procedure, 1973 that though

there exists a power in the Appellate Court to order a retrial, it should not be exercised in a routine manner and that a „denovo‟ trial or retrial is not the second trial and is continuation of the same trial and same prosecution and unless there are exceptional circumstances for obliterating an entire judgment assailed before the Appellate Court which has been caused by any failure of justice or on account of errors, omission or irregularity a retrial which would have „occasioned a failure of justice‟ ought not be directed.

22. The observations in the Ajay Kumar Ghoshal and Ors. Vs. State of Bihar and Ors. AIR 2017 SC 804 as referred to hereinabove lay down categorically that the High Court and the Appellate Court can order for fresh trial from the stage of examination under Section 313 of the Code of Criminal Procedure, 1973, only in cases where failure to question an accused on incriminating evidence has resulted in serious prejudice to the accused. In terms of the verdict of Nar Singh Vs. State of Haryana (2015) 1 SCC 496 in terms of Section 386 of the Code of Criminal Procedure, 1973 which deals with the power of the Appellate Court in terms of Section 386(b) of the Code of Criminal Procedure, 1973 in an appeal from a conviction, the appellate Court may:- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same. The Hon‟ble Apex Court in Ajay Kumar Ghoshal

and Ors. Vs. State of Bihar and Ors. AIR 2017 SC 804 has further observed in paras 11 to 17 to the effect : -

"11. 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. 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 on account of 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.

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 Pandit Ukha Kolhe vs. State of Maharashtra (1964) SCR 926, the Court held that: "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."

13. This Court, while dealing with the question whether the High Court should have quashed the trial proceedings only on account of declaration of the legal position made by the Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act, this Court stated, "a de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable; it should be limited to the extreme exigency to avert „a failure of justice‟. Observing that any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial". In State of M.P. vs. Bhooraji and Ors. (2001) 7 SCC 679, the Court went on to say further as follows:

"8....This is because the appellate court has plenary powers for revaluating and reappraising the evidence and even to take additional evidence by the appellate court itself or to direct such additional evidence to be collected by the trial court. But to replay the whole laborious exercise after erasing the bulky records relating to the earlier proceedings, by bringing down all the persons to the court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence, the said course can be resorted to when it becomes unpreventable for the purpose of averting "a failure of justice". The superior court which orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the trouble to reach the court and deposed

their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation."

14. In Bhooraji‟s case, the Court referred to Chapter XXXV of the Code and, particularly, Sections 461, 462 and 465 (1). After noticing the above provisions, the Court observed in paragraphs (15) and (16) of the order as follows:

"15. A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any enquiry were reckoned by the legislature as possible occurrences in criminal courts. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned "a failure of justice" the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity.

16. What is meant by a failure of justice occasioned on account of such error, omission or irregularity? This Court has observed in Shamnsaheb M. Multtani vs. State of Karnataka {2001 (2) SCC 577} thus:

"23. We often hear about failure of justice and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression failure of justice would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment, 1977 (1) All E.R. 813). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage."

15. In Gopi Chand vs. Delhi Administration AIR 1959 SC 609, a Constitution Bench of this Court was concerned with the criminal appeals wherein plea of the validity of the trial and of the orders of conviction and sentence was raised by the appellant. That was a case where the appellant was charged for three offences which were required to be tried as a warrant case by following the procedure prescribed in the Code of Criminal Procedure, 1860 but he was tried under the procedure prescribed for the trial of a summons case. The procedure for summons case and warrants case was materially different. The Constitution Bench held that having regard to the nature of the charges framed and the character and volume of evidence led, the appellant was prejudiced; accordingly, set aside the orders of conviction and sentence and the Constitution Bench held as under:-

"29. ....the offences with which the Appellant stands charged are of a very serious nature; and though it is true that he has had to undergo the ordeal of a trial and has suffered rigorous imprisonment for some time that would not justify his prayer that we should not order his retrial. In our opinion, having regard to the gravity of the offences charged against the Appellant, the ends of justice require that we should direct that he should be tried for the said offences de novo according to law. We also direct that the proceedings to be taken against the Appellant hereafter should be commenced without delay and should be disposed as expeditiously as possible."

16. In Zahira Habibulla H. Sheikh and Anr. vs. State of Gujarat and Ors. (2004) 4 SCC 158, [Best Bakery case] being an extraordinary case, the Supreme Court was convinced that the witnesses were threatened to keep themselves away from the Court and in such facts and circumstances of the case, not only the Court directed a „de novo‟ trial but made further direction for appointment of the new prosecutor and retrial was directed to be held out of the State of Gujarat. The law laid down in Best Bakery case for retrial was in the extraordinary circumstances and cannot be applied for all cases.

17. After considering the question a "speedy trial" and "fair trial" to a person accused of a crime and after referring to a catena of decisions and observing that guiding factor for retrial must always be demand of justice, in Mohd. Hussain @ Julfikar Ali vs. State (Govt. of NCT of Delhi) (2012) 9 SCC 408, this Court held as under:-

"41. „Speedy trial‟ and „fair trial‟ to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused‟s right of fair trial. Unlike the accused‟s right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning the accused‟s right to speedy trial have to be weighed vis-à-vis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social impact and societal needs must be weighed along with the right of an accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end. These principles must apply as well when the appeal court is confronted with the question whether or not retrial of an accused should be ordered.

42. The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the accused under Section 386 of the Code. That is clear from the bare language of Section 386(b). Though such power exists, it

should not be exercised in a routine manner. A „de novo trial‟ or retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice. Obviously, the exercise of power of retrial underSection 386(b) of the Code, will depend on the facts and circumstances of each case for which no strait jacket formula can be formulated but the appeal court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked."

23. Vide para 18 of the verdict of Ajay Kumar Ghoshal and Ors. Vs. State of Bihar and Ors. AIR 2017 SC 804 of the Hon‟ble Supreme Court, it is observed to the effect : -

"18. As discussed earlier, the High Court has not shown as to how the alleged lapses pointed out by the High Court have resulted in miscarriage of justice. When the accused prefers an appeal against their conviction and sentence, the appellate court is duty bound to consider the evidence on record and independently arrive at a conclusion. In our considered view, the High Court erred in remitting the matter back to the trial court for fresh trial and the impugned order cannot be sustained."

24. In the facts and circumstances of the instant case it is within the powers of this Court to consider the additional evidence on record in the form of the testimonies of AW1 to AW6 recorded pursuant to the order dated 22.10.2005 and also the testimonies of three witnesses recorded in terms of order dated 15.09.2016 in as much as this Court has plenary powers for revaluating and reappraising the evidence and even to take additional evidence itself or to direct such additional evidence to be collected by the Trial Court as has been done in the

instant case but to replay the whole laborious exercise by erasing the bulky record relating to the earlier proceedings, would be a sheer wastage of time, energy and costs and would cause grave prejudice to the rights of the speedy trial and this Court cannot be oblivious to the realities of the serious impact of such retrial or fresh judgments on pending cases in Sessions cases in the Trial Courts, which are over burdened with over flowing dockets and of the factum that 'law' as laid down by the Hon‟ble Supreme Court in In State of M.P. vs. Bhooraji and Ors. (2001) 7 SCC 679 cannot be utilized as an instrument as to be pedantic and has to be pragmatic and must be utilized for the process of justice dispensation.

25. Thus as observed hereinabove as this Court has plenary powers to appreciate the evidence directed by it to be collected by the Trial Court, which has been so recorded in terms of Section 391 of the Code of Criminal Procedure, 1973 which itself does not provide for remand of proceedings after recording of such additional evidence, and the addition and creation of such further stage of the proceedings before the Trial Court is not considered conducive as it would rather be disruptive of justice, thus the application Crl. M.A. 3025/2011 is thus dismissed.

26. In terms of the order dated 28.08.2018 of the Hon‟ble Supreme Court in Special Leave to Appeal (Cri.) No. 6138/2017 read with proceedings dated 01.09.2017 and 19.09.2017 of this Court, the matter is directed to be taken up for hearing and in terms of order dated 14.11.2017 of this Court, the matter is directed to be taken up for hearing on day to day basis till the final arguments in the matter are

complete and the matter is directed to be placed thus now before the Roster Bench on 05.07.2018 at 2.30 p.m.

ANU MALHOTRA, J JUNE 14, 2018/mk