J.M.F.C. Joura vs Shyam Singh S/O Shri Balvant Singh Thr. Power Of Attorny Holder Jagdish Singh Sikarwar

NEUTRAL CITATION NO. 2026:MPHC-GWL:21703
1 WA-1125-2017
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR

BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
th
ON THE 20 OF JULY, 2026
WRIT APPEAL No. 1125 of 2017
J.M.F.C. JOURA
Versus
SHYAM SINGH S/O SHRI BALVANT SINGH THR. POWER OF
ATTORNY HOLDER JAGDISH SINGH SIKARWAR AND OTHERS
Appearance:
Shri Sohit Mishra, Govt. Advocate for State.
Shri Sandeep Singh Bhadauria, Advocate for respondent No.1.
ORDER
Per: Justice Gurpal Singh Ahluwalia
Heard on I.A. No.2823/25. This is an application for
recall/modification of order dated 6/3/2020 passed in W.A. No.1125/2017.
2. It is submitted by counsel for appellant that appellant is aggrieved
by Direction No.11(ii), as mentioned in the impugned order passed in W.A.
No.1125/2017 and R.P. No.579/2017.
3. In order to understand the controversy, this Court is of considered
opinion that background of the case is to be considered.
4. Respondent Shyam Singh filed W.P. No. 5831/2011 seeking the
following reliefs:-

"The petitioner therefore, most humbly prays that this Hon’ble
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SHRIVASTAVA
Signing time: 23-07-2026
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Court may kindly be pleased to allow the petition and thereby
issuing a writ/order to quash/correct the impugned order as
contained in Annexure — P/1 and direct the respondents to
handover the original property/ornaments made of metal gold to
the petitioner or the present market value of those ornaments
which were ceased by police and kept in the custody of
J.M.F.C,Jaura and were put in the Sub- Treasury Jaura, be paid to
the petitioner as compensation."

5. It is the case of respondent that a theft took place in his house in the
midnight of 29/7/1978 at Village Tor, Tahsil Jaura, District Morena, in
which ornaments of gold and silver belonging to respondent's neice and
Bhabhi lying in suitcase and box were stolen by unknown thieves after
breaking the wall of the premises. The FIR of theft was lodged at Police
Station Devagarh, Tahsil Jaura, District Morena immediately after the
incident. During investigation, Police arrested accused persons and seized
the stolen ornaments as per various seizure memos. All the accused persons
were acquitted by learned JMFC, Jaura, District Morena by judgment dated
1/11/1990 and it was observed that the property, as mentioned in seizure
memos Annexures P/5, P/6 and P/10 shall be handed over to
complainant/respondent after expiry of period for filing appeal. It was also
directed by the trial Court that since there is a dispute with regard to the
property seized vide seizure memo Annexure P/14, therefore, Manmohan
(PW9) may present a civil suit before the Civil Court to get the question of
ownership decided and if no suit is preferred, then after expiry of period of
appeal, the property/ornaments shall be delivered to the respondent.
Manmohan preferred an appeal before Sessions Judge, Morena and it was
prayed that seized ornaments belong to him and, therefore, the direction
given by trial Court for handing over the ornaments to respondent may be
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 23-07-2026
16:44:51

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quashed and the seized ornaments may be returned back to him. Similarly,

respondent also preferred an appeal against the judgment passed by learned
JMFC before the Court of Sessions, Morena. The appeal filed by
Manmohan, as well as, respondent were consolidated and were remanded
back for necessary action. Thereafter, trial Court passed another order dated
12/3/1998 directing that ornaments mentioned in seizure memo (Annexure
P/15) may be returned back to complainant. Manmohan filed a suit before
Civil Judge Class I, Jaura District Morena, which was registered as Civil Suit
No. 29A/98. Said suit was dismissed on 21/9/2001 on account of non
appearance of plaintiff or his Advocate. On 24/1/2022, MJC No.02/2002 was
filed for restoration of suit which was also dismissed. One more MJC
No.04/2004 was filed for restoration of previous MJC and that too was
dismissed. Appeal was also preferred by Manmohan before III ADJ, Morena,
but it was again dismissed on account of non appearance. On 16/3/2011, in
Original Case No. 78/82 , Property/Article No.174/88 was called by
इ.फौ.
JMFC, Jaura, District Morena from Sub Treasury Jaura, District Morena. It
was found that ornaments kept in the custody of State Government have
been replaced by fake ornaments and, accordingly, they were not accepted by
respondent. Under these circumstances, petition was filed to quash the order
dated 29/3/2011 passed by JMFC Jaura, District Morena, as well as, for
handing over original property/ornaments made of gold to respondent or
seeking a direction that market value of those oranaments which were seized
by Police and kept in the custody of JMFC Jaura, District Morena and were
put in Sub Treasury Jaura, District Morena be paid to respondent. The said
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 23-07-2026
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writ petition was ultimately decided by learned Single Judge by order dated

27/6/2017 and following observations were made:-

"27-06-2017
Shri Jitendra Sharma, learned counsel for the petitioner.
Shri Anil Shrivastava, learned Panel Lawyer for the
respondents-State.
Heard.
Petitioner has filed this writ petition seeking indulgence of the
Court in directing the respondents to handover original
property/ornaments made of metal gold to the petitioner or for
payment of compensation as per present market value of those
ornaments which were seized by the Police and kept in the custody
of JMFC Jaura and were put in the Sub-Treasury Jaura.
There is no satisfactory explanation from the State as to the
replacement of the items which were inspected from the
authorities of the State and in absence of any satisfactory reply,
this Court has been constrained to pass a detailed order instead of
relegating the matter to the Civil Court for decision.
Learned counsel for the petitioner submits that he will be
satisfied if an enquiry is directed to be conducted by the
appropriate authority in the matter of mis-appropriation of the
property of the petitioner which was seized vide Japti Panchnama
Annexure P/5 and Annexure P/6 dated 10.11.1978. According to
him, these articles were changed either at the instance of JMFC
Jaura or in the Sub-Treasury and in support of this contention, he
has placed reliance on the ordersheet dated 16.03.2011, in which it
is mentioned that as per Panchnama Ex.P/10, two dastane of gold
of about 45 grams were to be forwarded to complainant Shyam
Singh. As per Muddemal Parchi, chain of dastane was broken, but
when said packet was opened, after preparation of Panchnama, the
chain was not found to be broken. It has also come on record that
goldsmith had examined those articles and found them to be
artificial. It has also come on record that a slip dated 14.02.1994
prepared by JMFC was found inside the sealed envelope, in which
it is mentioned that those dastane were artificial. This ordersheet
gives rise to following bona fide questions :-
1) What was the occasion for JMFC to prepare a slip and insert
in the sealed envelope on 14.02.1994 when the said articles were
admittedly seized on 10.11.1978. Therefore, the role of JMFC,
who was holding the office at Jaura on 14.02.19994, becomes
suspicious. In this regard, the Registrar General of this High Court
is directed to conduct an enquiry against said JMFC and enquire
as to what was the occasion for him on 14.02.1994 to insert a slip
as to purity of the article and on what basis he had put that slip in
the sealed envelope on 14.02.1994. Let a copy of this order for this
purpose be forwarded to the Registrar General of the High Court
immediately.
2) As far as the role of Sub-Registry, Jaura is concerned, that
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SHRIVASTAVA
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also needs to be investigated and for this purpose, this Court is of
the opinion that let appropriate case be registered by the Crime
Investigation Department of Police against the accused persons
and let CID enquire into the role of each of the persons including
the petitioner in replacement of the gold items with artificial items
as have been mentioned in ordersheet dated 16.03.2011 by the
Court of ACJM Jaura, District Morena.
It is made clear that the petitioner shall be afforded an
opportunity of hearing both before CID as well as Registrar
General while conducting enquiry against the concerned JMFC. It
is also made clear that in case it is found that the petitioner is not a
delinquent person and the items as per the petitioner were
examined before sealing the original gold items or found to have
been replaced either in the office of JMFC or in the Sub-Registry,
then the petitioner will have right to seek adequate compensation
from the delinquent. This petition is disposed in above terms.
Certified copy as per rules"


6. Being aggrieved by the said order, W.A. No.1125/2017 (present
writ appeal) was preferred which was disposed of by order dated 6/3/2020 by
deleting certain observations made by the writ Court, but affirmed Direction
No.2 by which the writ Court had directed that appropriate case be registered
by the Crime Investigation Department of Police against the accused persons
and let CID enquire into the role of each of the persons including the
petitioner in replacement of the gold items with artificial items as have been
mentioned in ordersheet dated 16.03.2011 by the Court of ACJM Jaura,
District Morena.
7. By filing I.A. No.2823/25, it is claimed by counsel for appellant
that since the FIR in respect of same offence was already registered and by
judgment and sentence dated 12/10/2019 the accused person was acquitted,
therefore, the Direction No.2 which was given by learned Single Judge in
W.P. No.5831/2011 and affirmed by writ appellate Court by impugned order
dated 6/3/2020 be modified and the direction to lodge the FIR may be
recalled.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 23-07-2026
16:44:51

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8. This Court on 3/7/2026 had passed the following order:-

"Shri Ankur Mody - Additional Advocate General with Shri
C.P.Singh - Advocate for the appellants/State.
Shri Sandeep Singh Bhadoriya - Advocate for the respondents.
Heard on I.A.No.2823/2026.
2. This is an application for modification of order dt.06.03.2020
passed by the Co-ordinate Bench of this Court in this case.
3. It is submitted by counsel for the appellants that Writ Court as
well as Writ Appellate Court had directed for registration of FIR
by the CID, but the said orders were passed without realising the
fact that the FIR was already lodged with regard to the
replacement of gold ornaments and the trial has resulted in
acquittal of the accused persons.
4. To buttress his contentions, counsel for the State has referred to
copy of judgment dt.12.10.2019 passed by J.M.F.C. Jaura District
Morena in Criminal Case No.300369/2006. Accordingly, it is
prayed that directions issued by this Court for registration of FIR
by CID may be recalled as accused persons have already been
acquitted.
5. The submission made by counsel for the appellant/State that
the directions were issued by the Writ Court as well as Writ
Appellate Court without realising the fact that FIR was already
lodged and the criminal trial has resulted in acquittal is shocking
and mischievous. When a specific question was put to Shri Ankur
Mody as to whether the State of Madhya Pradesh or any of the
respondents had pointed out in their return about registration of
FIR and pendency of trial or not, then it was fairly conceded by
Shri Ankur Mody that the factum of registration of FIR and
pendency of trial was never brought to the notice of Writ Court
either verbally or in writing. From the record of the Writ Court, it
is clear that Sub Treasury Officer, Joura and Collector Morena
were initially impleaded as respondents No.3 and 4. Respondents
No.3 and 4 had filed their return, which was supported by an
affidavit of Y.S.Bhadoriya, who was in government service.
However, the designation which he was holding was not disclosed
in that affidavit.
6 . It is fairly conceded by Shri Ankur Mody that the factum of
registration of FIR and pendency of trial was not disclosed in the
return.
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Signed by: ANAND
SHRIVASTAVA
Signing time: 23-07-2026
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7. That is not the end of the matter.

8 . I.A.No.2597/2013 was filed by the petitioner - Shyam Singh
Sikarwar for impleading the State Govt. as party.
9. By order dt.07.07.2014, the aforesaid application was taken up
and it was allowed and notices were issued to the State of Madhya
Pradesh. Surprisingly, it is a matter of replacement of ornaments
while they were in the safe custody of the State Government, still
the State Govt. did not choose to even file the return.
1 0 . By order dt.26.04.2017, the Cause List Section was also
directed to reflect the name of Advocate General Office in the
cause list in order to enable the State Govt. to give effective
assistance to the Court, but it appears that all the respondents were
either negligent or they were hand in glove with some unknown
persons, who were vitally interested in original gold ornaments.
Nothing was brought to the notice of the Court and ultimately the
petition was finally disposed of by learned Single Judge vide order
dt.27.06.2017 by issuing a direction to the CID to register the
FIR. It is not out of place to mention here that even on that day,
the trial was pending, as the trial stood concluded on 12.10.2019.
11. Writ Appeal was filed on 20.11.2017 and even in the Writ
Appeal, it was not disclosed that the FIR in respect of the same
incident has already been lodged and the trial is going on. Thus, it
is clear that the Writ Appeal, which was filed, was with the
solitary intention to get rid of the liability by suppressing the
material facts from the court. The Writ Appeal was finally
disposed of by order dt.06.03.2020.
12. It is not out of place to mention here that by that time the trial
had already concluded. From the record, it is clear that the Writ
Appeal was listed on 24.11.2017, 13.12.2017, 15.01.2018,
02.02.2018, 22.08.2019, 30.08.2019, 06.09.2019, 13.09.2019 and
27.09.2019. i.e. during the pendency of trial. The judgment was
passed in the trial on 12.10.2019, but the factum of registration of
FIR and pendency of trial was deliberately suppressed and now it
was submitted that the directions which have been issued by the
Court are without realising the fact that trial has already resulted in
the acquittal of accused.
1 3 . Why the officers suppressed the material facts, why
respondents No.3 and 4 treated the return as a sheer formality, why
the State Govt. in spite of the notice issued by the Writ Court, did
not file the reply, are certain questions which are required to be
replied.
14. Accordingly, Shri Mody, Additional Advocate General prays
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Signed by: ANAND
SHRIVASTAVA
Signing time: 23-07-2026
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for and is granted two weeks' time to file specific reply on the
following issues :-

(i) Why the respondents No.3 and 4 did not bring to the notice of
Writ Court with regard to registration of FIR and pendency of trial
?
(ii) Why, while filing Writ Appeal, registration of FIR and
pendency of trial was never disclosed either in the form of
grounds or additional facts or during course of arguments.
(iii) As already pointed out, at least on nine occasions, the Writ
Appeal was listed and even on those dates also, respondents/State
authorities did not inform the writ appellate court about
registration of FIR.
(iv) On 23.01.2020 and 06.03.2020, the Writ Appeal was listed,
but even then, the factum of registration of FIR and acquittal of
accused was not brought.
15. Although Shri Ankur Mody tried to justify his stand that it
was not deliberate attempt on the part of the respondents in not
disclosing the aforesaid fact and at the most it can be said to be in
ignorance of factual position, but unfortunately, said submission
cannot be accepted. Whenever a notice is issued to respondents,
then it is only with the solitary intention that the respondents shall
place all the facts on record after doing an extensive homework. If
the State authorities have treated filing of reply as a ritual or sheer
formality, then it is for the State Govt. to consider as to whether
the State Govt. is being represented properly or not.
16. When a specific question was put to Shri Ankur Mody as to
whether filing of reply is a sheer formality or the OIC must place
all the facts after doing the homework, then rightly so it was
admitted by Shri Mody that filing of reply is not a formality.
Therefore, the respondents shall also file their reply as to whether
the conduct of Shri Bhadoriya, who had filed the reply on behalf
of respondents No.3 and 4 as an OIC, was proper in not disclosing
the fact of registration of FIR and pendency of trial or not and if
his conduct was not proper, then what action is proposed against
him.
17. The record of the trial court has already been received. The
office is directed to keep it in a sealed cover alongwith the record
of this Writ Appeal.
18. List this case on 20.07.2026.
19. It is made clear that the reply should be supported by the
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Signed by: ANAND
SHRIVASTAVA
Signing time: 23-07-2026
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NEUTRAL CITATION NO. 2026:MPHC-GWL:21703
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affidavit of a senior officer above the rank of Collector Morena
because Collector Morena was a party in the writ petition but has
shown complete disregard to the lis in question."

9. In compliance of the said order, reply has been filed vide
Document No.11261/26 and it is mentioned that OIC of the case has expired
on 13/2/2026, therefore, now it is not possible to probe into the reasons for
not including the information regarding lodging of FIR and pendency of trial
in the reply which was filed before the writ Court.
10. Now the only question for consideration is as to whether this
Court should modify the order dated 6/3/2020 thereby recalling the direction
to register FIR, or can pass some appropriate order in the facts and
circumstances of the case ?
11. Counsel for appellant, as well as, respondent were requested to
address this Court as to whether this Court can modify the direction to lodge
FIR by directing the CID to conduct further investigation.
12. Counsel for respondent, all the time tried to impress upon this
Court by submitting that respondent could not get original ornaments but did
not assist the Court on legal side. Similarly, counsel for appellant was not in
a position to assist the Court on legal side. Under these circumstances, this
Court is left with no other option but to consider the facts and circumstances
of the case on its own.
13. A peculiar circumstance has arisen in the case where although
gold ornaments were recovered and seized by the Police and were kept in
Sub Treasury, Jaura, District Morena, but ultimately when the box was
opened, it was found that they were replaced by fake ornaments. Therefore,
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 23-07-2026
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NEUTRAL CITATION NO. 2026:MPHC-GWL:21703
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it is clear that the original articles must have been replaced by somebody by

fake ornaments.
14. Be that whatever it may be.
15. The question is as to whether this Court can direct for further
investigation even after acquittal of accused or not ?
It is made clear that this Court is not intending for directing further
investigation against the accused who has been acquitted because if such a
direction is given then it would amount to double jeopardy which is not
permissible in law.
16. The Supreme Court in the case of P. Manikandan VS. Central
Bureau of Investigation and Others reported in 2024 SCC OnLine SC
3808 has held as under:-

"15. The Constitution Bench, while dealing with such an issue,
that when such power should be exercised by the Appellate Court
in Ukha Kolhe v. State of Maharashtra, observed that:
“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 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.”
(Emphasis supplied)
16. In the “Best Bakery Case”, wherein the Trial Court directed
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SHRIVASTAVA
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the acquittal of the accused person in a case of mass killings, the
same was upheld by the High Court of Gujarat while dismissing
the criminal appeal, this Court, after considering the facts and
circumstances of the case, directed the de novo trial of the accused
person by observing that:

“73. … We are satisfied that it is a fit and proper case, in the
background of the nature of additional evidence sought to be
adduced and the perfunctory manner of trial conducted on the
basis of tainted investigation a retrial is a must and
essentially called for in order to save and preserve the
justice-delivery system unsullied and unscathed by vested
interests. We should not be understood to have held that
whenever additional evidence is accepted, retrial is a
necessary corollary. The case on hand is without parallel and
comparison to any of the cases where even such grievances
were sought to be made. It stands on its own as an exemplary
one, special of its kind, necessary to prevent its recurrence. It
is normally for the appellate court to decide whether the
adjudication itself by taking into account the additional
evidence would be proper or it would be appropriate to direct
a fresh trial, though, on the facts of this case, the direction for
retrial becomes inevitable.”
17. A Three Judge Bench of this Court in Mohd. Hussain v. State
(Govt. of NCT of Delhi), held that:
41. 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 of the accused should be ordered by the
appellate court in exceptional and rare cases and only when
in the opinion of the appellate court such course becomes
indispensable to avert failure of justice. Surely this power
cannot be used to allow the prosecution to improve upon its
case or fill up the lacuna. A 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 under Section
386(b) of the Code, will depend on the facts and
circumstances of each case for which no straitjacket 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.
(Emphasis supplied)
18. While relying upon the decision of the Constitution Bench
i n Ukha Kolhe (supra), this court discussed the scope of
Section 386 of Cr. P.C. in Ajay Kumar Ghoshal v. State of Bihar,
to the effect that:
“10. Section 386 CrPC deals with the powers of the appellate
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SHRIVASTAVA
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court. As per Section 386(b) CrPC 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 retried 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.
11. Though the word “retrial” is used under Section 386(b)
(i) CrPC, 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…”
(Emphasis supplied)
19. This court in Nasib Singh v. State of Punjab, formulated the
principles emerging from several decisions on retrial given by this
Court:

33. The principles that emerge from the decisions of this
Court on retrial can be formulated as under:
33.1. The appellate court may direct a retrial only in
“exceptional” circumstances to avert a miscarriage of justice.
33.2. 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.
33.3. 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.
33.4. 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 appellate court
directing a retrial to provide a reasoned order on the nature of
the miscarriage of justice caused with reference to the
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 23-07-2026
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NEUTRAL CITATION NO. 2026:MPHC-GWL:21703
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evidence and investigatory process.
33.5. If a matter is directed for retrial, the evidence and
record of the previous trial is completely wiped out.
33.6. 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.
(Emphasis supplied)
20. In the present case, the High Court, after acquitting the
appellant, directed the CBI to re-investigate after considering the
relevant material and documents on record. A perusal of the
judgment reveals that the learned division bench discussed the
material on record in depth in arriving at the conclusion that “this
is a case where there is no evidence at all.” Considering that this
was an appeal from a sentence of capital punishment, it was
observed:
“15. It is not known on what basis, particularly there is an
acute dearth of evidence, the trial court has gone to the extent
of awarding death sentence…”
It would be worthwhile to refer to the two succeeding
paragraphs as well.
“16. The learned Additional Public Prosecutor would point
out the observation made by the trial court, while giving
conviction, stating that the sexual abuses against children are
increasing; that the child marriage is also on the increase; that
there is no protection for the children; that the child who
innocently followed the accused, while not knowing fatefully
unaware of, had been done to death; that the act of the
accused is beastly, the accused is liable to be punished by
hanging him to death, is totally illegal, unjust and
unwarranted.
16.1 Whether these observations alone, without there being
basic evidence connecting the crime and the accused, are
sufficient to award a capital punishment?. Only if the
evidence establishes the crime as against the accused, while
considering the quantum of punishment, they may be
relevant considerations. In any event, these factors cannot be
consideration to record a finding of guilt as against the
accused.”
21. This Court has observed in Kailash Gour v. State of
Assam that any benefit accruing from faulty investigation ought to
be given to the accused. The necessary corollary thereof being that
simply because the investigation was less than satisfactory, the
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accused should not be subjected to the same once more.
43. … That an accused is presumed to be innocent till he is
proved guilty beyond a reasonable doubt is a principle that
cannot be sacrificed on the altar of inefficiency, inadequacy
or inept handling of the investigation by the police. The
benefit arising from any such faulty investigation ought to go
to the accused and not to the prosecution. So also, the quality
and creditability of the evidence required to bring home the
guilt of the accused cannot be different in cases where the
investigation is satisfactory vis-à-vis cases in which it is not.
The rules of evidence and the standards by which the same
has to be evaluated also cannot be different in cases
depending upon whether the case has any communal
overtones or in an ordinary crime for passion, gain or
avarice.
(Emphasis supplied)
22. Having observed as extracted supra, the High Court held that
the appellant deserved acquittal. Keeping in view the aforesaid
authorities, the question then is, could the High Court have
ordered the crime to be re-investigated?
23. Firstly, what must be acknowledged is that there exists a clear
difference between retrial and reinvestigation. Retrial implies that
the judicial process that starts after the investigation of the crime is
complete shall be redone from the start, whereas the latter implies
that the police and other investigating authorities are once again
required to collect and examine evidence in order to present
charges before a Court, so that the trial can commence on such
freshly collected evidence."


17. The Supreme Court in the case of Ankush Maruti Shinde and
Others Vs. State of Maharashtra reported in (2019) 15 SCC 470 has held as
under:-
"14. At the same time, we cannot lose sight of the fact that five
persons have been killed/murdered, out of whom even one lady
was raped. Therefore, it is the duty of the Court to see that the real
culprits are booked and are punished. The Court cannot shut its
eyes to the aforesaid fact that five persons have been
killed/murdered and that there is no fair investigation and because
of the lapse on the part of the prosecution/investigating agency in
not conducting any investigation qua those four persons who were
identified by PW 8 on 7-6-2003 before the Special Executive
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Magistrate. The benefit of the lapse in investigation and/or unfair
investigation cannot be permitted to go to the persons who are real
culprits and in fact who committed the offence. As observed
hereinabove, unfortunately, there was no investigation at all with
respect to those four persons who were identified by PW 8 in her
statement on 7-6-2003. It has come on record and as observed
hereinabove, those four persons who were identified by PW 8 on
7-6-2003, which was just after two days of the incident, were
other than the appellant six persons who came to be tried.
Therefore, we are of the opinion that this is a fit case for further
investigation under Section 173(8) of the Code of Criminal
Procedure qua those four persons, who were identified by PW 8 on
7-6-2003, the reference of whom is in the statement recorded by
PW 13."

18. The Kerala High Court in the case of M.M. Mani Vs. State of
Kerala reported in 2012 SCC Online KER 14516 has held as under:-
"24. ......................................"Constitutional protection insulating a
person under Article 20(2) of the Constitution even to a person
tried before a court is applicable only where he has been
prosecuted and punished of the offence. Accused person who had
been tried of an offence charged against him where it ends in an
order of acquittal/conviction, he alone, will be entitled to the
insulation from further prosecution in respect of such offence on
the principle 'autre fois acquit' or 'autre fois convict' as enjoined
and mandated under Section 300 of the Code. In the crime after
investigation, previously, on the report filed some accused persons
were tried and it had ended in their acquittal/conviction would not
constitute any issue estoppel barring further investigation of the
crime, and prosecution of offenders not put on trial earlier. The
judgment of acquittal/conviction rendered against the accused
previously put on trial in the crimes which is further investigated
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has relevance only for the limited purpose under Section 43 of the
Evidence Act, and nothing more."

19. Thus, it is clear that in special circumstances, this Court can direct
for further investigation not qua the accused who has been acquitted, but to
find out the real culprit.
20. In the present case, there are serious allegations against Sub
Treasury, Jaura, District Morena and other Officers in whose custody gold
ornaments were kept and gold ornaments were replaced by fake ornaments.
If such things are allowed to happen specifically when the ornaments were in
the custody of Police/Court, then it is an exceptional circumstance where this
Court must exercise its extraordinary jurisdiction under Article 226 of the
Constitution of India to direct further investigation even after acquittal of
accused. At the cost of repetition, it is directed that further
investigation qua the accused who has been acquitted is not permissible
because it would amount to double jeopardy. Since direction to the CID to
register case was passed as the fact that FIR in relation to same offence has
already been registered and trial is pending was not disclosed, therefore, this
Court is of considered opinion that the said direction requires modification.
21. Accordingly, I.A. No.2823/25 is hereby allowed and the Direction
as contained in paragraph 11(ii) of the order dated 6/3/2020 passed by co-
ordinate Bench of this Court in W.A. No.1125/2017, is hereby modified. It
is directed that the CID shall take up the matter for further investigation in
Crime/FIR No.68/94 registered at Police Station Jaura, District Morena for
offence under sections 409, 120B of IPC. However, it is made clear that the
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acquitted accused person namely Narendra Kumar Mahor shall not be

subjected to any interrogation or further investigation as it would violate his
fundamental right of protection against double jeopardy. Accordingly, in
place of Direction No.11(ii) passed in order dated 6/3/2020, it is directed that
CID shall conduct further investigation in Crime No.68/94.
22. With aforesaid observations, proceedings are finally disposed of.
23. In compliance of order dated 26/02/2026, the record of the Trial
Court was received in sealed cover. Since, this matter has been decided on
legal issue without touching the disputed facts, therefore, the sealed record
was not opened.
24. Office is directed to return the record to the Trial Court in the same
condition.
25. The Trial Court is directed to ensure that manipulations are not
done in the record and the same is kept in sealed and safe manner.
(G. S. AHLUWALIA)
(ANURADHA SHUKLA)
JUDGE
JUDGE
(and)

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