Full Judgment Text
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CASE NO.:
Appeal (crl.) 1243-1244 of 1997
PETITIONER:
State of U.P.
RESPONDENT:
Abhai Raj Singh & Anr.
DATE OF JUDGMENT: 08/03/2004
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
In these appeals the question of seminal importance
which arises is whether in exercise of power under Section
386 of the Code of Criminal Procedure, 1973 (in short ’the
Code’), the Appellate Court would be justified in directing
acquittal, where the records of the Trial Court are not
placed before it on some ground or the other. The Allahabad
High Court by the impugned judgment directed acquittal of
the accused persons (present respondents) who were
appellants before it.
Background facts need be noticed are essentially as
follows:
Accused persons faced trial for alleged commission of
offences punishable under Section 302 read with Section 34
of the Indian Penal Code, 1860 (in short the ’IPC’).
According to prosecution, Shakuntla Devi and Munni Devi were
sleeping on the roof of the second storey of their house.
Kanti Devi was sleeping on the open roof in front of the
southern verandah on the first floor of the house. The main
door of the house on the east was closed. There were no
other persons in the house because Nathoo Singh and Brij Pal
Singh were both in jail being accused of the murder of
Jogendra Singh. It is said that these accused belonged to
the party of Dafedar Singh who had secured his bail in the
case of Gajju Singh’s murder, before the present incident in
question. The allegation was that the three accused and the
deceased accused Jagannath Singh scaled over the uppermost
roof of Shakuntla Devi’s house from its south-western side
and reached the place where only Munni Devi and her step-
mother were sleeping on separate beds near each other. Munni
Devi was, in the process, awakened. On hearing sounds, she
flashed a torch, in the light of which she saw and
recognised all the four accused. She also noticed that Om
Pal Singh had a knife about one foot long, while the other
three held guns. Abhai Raj Singh immediately fired at the
sleeping Shakuntla Devi. Munni Devi raised alarm.
Undeterred, Ved Pal Singh and Jagannath Singh also fired
shots at Shakuntla Devi, and Om Pal Singh repeatedly stabbed
her with the knife. On hearing gun shot sounds villagers
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arrived and knocked at the main door. The miscreants
escaped the way they had come. Kanti Devi opened the door to
let in the villagers who saw Shakuntla Devi dead. Munni Devi
dictated the FIR Ex. Ka.1 to her cousin Om Parkash Singh and
handed it to village Chowkidar to lodge it. At 4.30 a.m. in
the same night it was registered at Bhamora Police Station.
The police after recording the FIR, started investigation,
arrived at the spot, performed the inquest and sent the dead
body for autopsy. After completion of investigation, charge
sheet was placed. Accused persons pleaded innocence and
faced trial. The present respondents were found guilty,
convicted and sentenced as afore-noted. Before commencement
of trial accused Jagannath died.
Two appeals against the common judgment and order dated
23.6.1979 were filed by the respondents Om Pal Singh, Abhai
Raj Singh and Ved Pal Singh. After admission of the appeal,
registry of the High Court sent for the records from the
Trial Court. By letter dated 27.6.1984 the office-in-charge
(Record room) Judges Court Bareilly informed the High Court
that the records of the case were not available having been
destroyed in the fire that broke out in the night between
18/19.11.1979. Nothing seems to have been done thereafter,
though we feel that the registry should have placed the
matter before the appropriate Bench for further directions
to explore the possibility of reconstructing the records, to
effectively dispose of the appeals. Be that as it may, by
order dated 1.11.1993 i.e more than 9 years after the letter
was received from the lower court, 3 months time was allowed
for reconstruction of the record at the Sessions Judge
level. The High Court while disposing of the appeal on
25.2.1994 noted that no communication had been received
about the reconstruction of the record, and inference was
therefore drawn that it was not possible for the Sessions
Judge to reconstruct the record. It was in this background
it was held that the mandate of law contained in Sections
385 and 386 of the Code cannot be complied with and,
therefore, directed that the appellants were not to be
arrested in pursuance to the judgment and order, and were
not required to surrender also and the bail bonds were to be
cancelled.
Learned counsel for the appellant submitted that the
approach of the High Court is not correct and is not legally
sustainable. The course adopted by the High Court is not
permitted under Section 386 of the Code. In response,
learned counsel for the respondents submitted that after
long passage of time when reconstruction of the records is
not possible or practicable, the only course which was
available to be adopted has been followed by the High Court.
Sections 385 and 386 of the Code deals with "procedure
for hearing appeals not dismissed summarily" and "powers
of the Appellate Court". They read as follows:
"Section 385- Procedure for hearing
appeals not dismissed summarily: (1) If
the Appellate Court does not dismiss the
appeal summarily, it shall cause notice
of the time and place at which such
appeal will be heard to be given-
(i) to the appellant or his pleader;
(ii) to such officer as the State
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Government may appoint in this
behalf;
(iii) if the appeal is from a judgment
of conviction in a case
instituted upon complaint to the
complainant;
(iv) if the appeal is under Section
377 or Section 378, to the
accused, and shall also furnish
such officer, complainant and
accused with a copy of the
grounds of appeal.
(2)The Appellate Court shall then send
for the record or the case, if such
record is not already available in that
Court and hear the parties:
Provided that if the appeal is only
as to the extent or the legality of the
sentence, the Court may dispose of the
appeal without sending for the record.
(3) Where the only ground for appeal
from a conviction is the alleged
severity of the sentence, the appellant
shall not except with the leave of the
Court urge or be heard in support of any
other ground".
Section 386- Powers 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 of
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
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(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;
(3) 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".
The powers of the Appellate Court when dealing with an
appeal from a conviction are delineated in sub-clauses (i),
(ii) and (iii) of clause (b) of Section 386 of the Code.
The Appellate Court is empowered by Section 386 to reverse
the finding and sentence and acquit. Therefore, the
acquittal is possible when there is reversal of the finding
and sentence. The Appellate Court is also empowered to
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discharge the accused. The third category which seems to be
applicable to the present case is a direction for re-trial
by a court of competent jurisdiction subordinate to the
Appellate Court or committed for trial. For exercise of the
powers in cases of first two categories, obviously a finding
on merits after consideration of the materials on record is
imperative. Where that is not possible because of
circumstances like the case at hand i.e. destruction of the
records, the proper course for the Appellate Court would be
to direct re-trial after reconstruction of the records if in
spite of positive and constructive efforts to reconstruct
the records the same was impossible. If on the other hand,
from the copies available with the prosecuting agency or the
defence and/or their respective counsel, reconstruction is
possible to be made, said course should be adopted and the
appeal can be disposed of as it deserved under course
indicated in clauses (i) and (ii). After perusal of the
records and hearing appellant’s pleader and public
prosecutor under Section 377 or 378, the exercise of power
as indicated above can be resorted to. As was observed in
Bani Singh and Ors. v. State of U.P. (1996 (4) SCC 720) the
plain language of Section 385 makes it clear that if the
Appellate Court does not consider the appeal fit for summary
dismissal, it must call for the records and Section 386
mandates that after record is received, the Appellate Court
may dispose of the appeal after hearing as indicated.
A question would further arise as to what happens when
the reconstruction is not possible. Section 386 empowers the
Appellate Court to order that the case be committed for
trial and this power is not circumscribed to cases
exclusively triable by the Court of Sessions. (See State of
U.P. v. Shankar and Anr. AIR 1962 SC 1154).
It has been the consistent view taken by several High
Courts that when records are destroyed by fire or on account
of natural or unnatural calamities, reconstruction should be
ordered. In Queen Empress v. Khimat Singh (1889 A.W.N. 55)
the view taken was that the provisions of Section 423(1) of
the Criminal Procedure Code, 1898 (in short ’the Old Code’)
made it obligatory for the Court to obtain and examine the
record at the time of hearing. When it was not possible to
do so, the only available course was a direction for re-
construction. The said view was reiterated more than six
decades back in Re Sevugaperumal and Ors. (AIR 1943 (Madras)
391). The view has been reiterated by several High Courts as
well, even thereafter.
The High Court did not keep the relevant aspects and
considerations in view and came to the abrupt conclusion
that re-construction was not possible merely because there
was no response from the Sessions Judge. The order for re-
construction was on 1.11.1993 and the judgment of the High
Court is in Criminal Appeal 1970 of 1979 dated 25.2.1994.
The order was followed in Criminal Appeal No.1962 of 1979
disposed of on 16.8.1995. It is not clear as to why the
High Court did not require the Sessions Court to furnish the
information about re-construction of records; and/or itself
take initiative by issuing positive directions as to the
manner, method and nature of attempts, efforts and exercise
to be undertaken to effectively achieve the purpose in the
best interests of justice and to avoid ultimately any
miscarriage of justice resulting from any lapse, inaction or
inappropriate or perfunctory action, in this regard;
particularly when no action was taken by the High Court to
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pass necessary orders for about a decade when it received
information about destruction of record. The course adopted
by the High Court, if approved, would encourage dubious
persons and detractors of justice by allowing undeserved
premium to violators of law by acting hand in glove with
those anti social elements coming to hold sway, behind the
screen, in the ordinary and normal course of justice.
We, therefore, set aside the order of the High Court and
remit the matter back for fresh consideration. It is to be
noted at this juncture that one of the respondents i.e. Om
Pal has died during the pendency of the appeal before this
Court. The High Court shall direct re-construction of the
records within a period of six months from the date of
receipt of our judgment from all available or possible
sources with the assistance of the Prosecuting Agency as
well as the defending parties and their respective counsel.
If it is possible to have the records reconstructed to
enable the High Court itself to hear and dispose of the
appeals in the manner envisaged under Section 386 of the
Code, rehear the appeals and dispose of the same, on its own
merits and in accordance with law. If it finds that re-
construction is not practicable but by order retrial
interest of justice could be better served - adopt that
course and direct retrial - and from that stage law shall
take its normal course. If only reconstruction is not
possible to facilitate High Court to hear and dispose of the
appeals and the further course of retrial and fresh
adjudication by Sessions Court is also rendered impossible
due to loss of vitally important basic records - in that
case and situation only, the direction given in the impugned
judgment shall operate and the matter shall stand closed.
The appeals are accordingly disposed of.