STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
This Criminal appeal having come up for orders on 05.09.2024, upon
perusing the appeal and hearing the arguments of SRI.C.P.UDAYABHANU,
advocate for appellant and Public Prosecutor for the respondent, the court
on the same day passed the following:
OPHY THOMAS, J.
S
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Crl. Appeal No.2273 of 2006
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Dated this the 5th day of September, 2024
O R D E R
A report dated 30.08.2024 has been received from
Additional District and Sessions Judge-II, Ernakulam,
through the District Judge, Ernakulam, reporting that even
afterenquiry,itwasfoundthatreconstructionofthemissing
records was found impossible. The sessions case is of the
year 2006, based on an incident whichoccurredintheyear
2003.Theappealalsoisoftheyear2006.Areportgivenby
the Record Clerk of District Court, Ernakulam was seen
submitted along with the earlier report of the II Additional
District and Sessions Judge, Ernakulam, dated 31.01.2023.
It says that a letter was received from the High Court on
09.01.2014, for sending the records, anditwasreportedat
that time itself, that the 313 statements, deposition of
witnesses, fair judgment, bail bond, committal warrant etc.
were not readable as it was destroyed by termites and
Crl.Appeal No.2273 of 2006 2
moisture. Thereafter, the very same files were again seen
calledforfromthisCourtintheyear2024.Afterconducting
theenquiryasorderedbythisCourt,learnedtrialJudgehas
reported that, he could not reconstruct the records, even
after taking all possible efforts. So there is no purpose in
directing the trial court again, to reconstruct the records,
which was found to be an impossible task.
2. Learned Public Prosecutor sought one more chance
totrywhethertherelevantrecordsareavailableintheoffice
of the prosecution or even in the Police Station concerned.
Time is granted up to 08.10.2024.
3. Learned counsel for the appellant would rely on the
decision Jitendra Kumar Rode v. Union of India [2023
ICO 1090], in which the Apex Court held that, 'when the
trial court records are not available, if conviction is upheld
by the High Court, it infringestherighttolifeandlibertyof
theaccusedenshrinedunderArticle21oftheConstitutionof
India. The court sitting in appeal is required to call for the
Crl.Appeal No.2273 of 2006 3
records of the case, and it is an obligation and power
coupled with a duty, and only after the perusal of such
records, an appeal wouldbedecided.Moreover,Sub-section
(2)ofSection385Cr.P.C.requiresthatthepartiesareheard
in the light of the records received by the court. When the
possibility of appeal is extinguished, due to the absence of
essential material, the perusal andconsiderationofwhichis
required to take stock of the matter and then uphold or
reverse as the case may be, then the benefit of the doubt
hastobeextendedtotheaccused,whenheisinnomanner
responsible for the same.'
4.Inthecaseonhand,theappealisoftheyear2006.
Earlier, records were called for in the year 2014, and
thereafter, in the year 2024. Even in the year 2014, the
records were in a damaged condition. We know lack of
facilitiesandinfrastructureintrialcourtstokeeptherecords
and MOs in safe condition. Most of the courts are reeling
under space constraints, even to keep the current files. In
Crl.Appeal No.2273 of 2006 4
manycourts,filesareseenkeptinopenVarandhaorevenin
the terrace of the building covered with plastic sheets. By
lapse of time those records will get damaged irrecoverably.
Insuchcircumstances,ifappealintimationisnotreceivedin
time,withoutknowingpendencyoftheappeal,suchrecords
may even be destroyed, after taking orders from the High
Court. In most of the cases no appeal intimation is seen
giventothetrialcourt.Whentherecordsarecalledforafter
15 - 20 years of filingtheappeal,thetrialcourtscannotbe
found fault with, even if the records are being damaged or
destroyed. The only solution to this problem, is to sendthe
appeal intimation to the trial court as soon as an appeal is
admitted on file, and to call for the records within a
reasonable time thereafter, to ensure that the records are
available for hearing the appeal. Otherwise there is every
chance for the accused persons to escape from conviction
andsentenceeveninseriousoffences,merelyforthereason
that the trial court records are not available to appreciate
Crl.Appeal No.2273 of 2006 5
the appeal on merits, and it is more so as the accused
persons are not responsible for such damage ordestruction
of records due to lapse of time. Digitization of trial court
records is still a distant dream, which is yet to gain
momentum. Till that dream come true, we have to make
sure that, no convicted accused is let off scot free, merely
because of the fact that the trial court records are not
available to appreciate the appeal on merits.
So the Registrar (Judicial) is directed to give proper
instructions to the sections concerned, and see that:-
(1) In all the pending criminal appeals up to and
inclusive of the year 2018, trial court records are
called for before 31.12.2024, in spite of specific
directions in each case.
(2) Immediately on admitting an appeal, appeal
intimationissenttothetrialcourt,topreservethe
records, and the factum of sending such appeal
intimation is endorsed in the judges papers.
Crl.Appeal No.2273 of 2006 6
(3) In all the pending appeals of the year 2019 to
2024, which are already admitted, ensure that
appeal intimation has already been sent, and if
not sent, send it before 31.12.2024.
(4) On 31.12.2024, the Registrar (Judicial) has to
take a stock of the situation, to ensure that the
directions aforesaid have been complied with in
letter and spirit.
Posted to 08.10.2024, for report oflearnedPublic
Prosecutor regarding availability of records.
d/-
S
SOPHY THOMAS
JUDGE
DSV/-
05-09-2024 /True Copy/ Assistant Registrar
