AJAY KUMAR GHOSHAL ETC. versus STATE OF BLHAR & ANR.

Citation: [2017] 1 S.C.R. 469 · Decided: 31-01-2017 · Supreme Court of India · Bench: DIPAK MISRA, R. BANUMATHI · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

[2017] 1 S.C.R. 469 
AJAY KUMAR GHOSHAL ETC. 
v. 
STATE OF BlHAR & ANR. 
(Criminal Appeal Nos. 119-122 of2017) 
JANUARY 31, 2017 
[DIPAK MISRA AND R. BANUMATHI, JJ.) 
Code of Criminal Procedure, 197 3 - s. 386 - Powers of the 
appellate court - High Court ordering re-trial of the dowry death 
case - Appeal thereagainst by accused persons - Held: Powers 
conferred by s. 386 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 - Circumstances warranting 
retr.ial must be such where the trial l)!as. undertaken by the court 
·having no jurisdiction, or trial was vitiated by serious illegality or 
irregularity on account of the misconception of nal'llre of 
proceedings or irregularity resulted in miscarriage of justice ·-As 
also where the original trial was not satisfactory for wrong admission 
or wrong rejection of evidences or the court refused to hear certain 
witnesses who were supposed to be heard - On facts, High Court 
did not state as to how the alleged lapses resulted in miscarriage of 
;ustice necessitating retrial-High Court erred in remitting the matter 
back to the trial court for fresh trial _:_ Thus, order passed by the 
High Court set aside - Matter remitted back to the High Court for 
consideration of the matter afresh. 
Allowing the appeals, the Court 
HELD: 1.1 The High Court pointed out certain lapses; but 
did not state as to how such alleged lapses resulted in miscarriage 
of justice necessitating ret.rial. Certain lapses either in the 
investigation or in the 'conduct of trial' are not sufficient to direct 
retrial. The High Court being the )<'irst Appellate .Court is duty 
bound to examine the evidence and arrive at an independent 
finding based on appraisal of such evidence and. examine whe.ther 
such lapses actually affect the prosecution case; or such lapses 
have actually resulted in failure of justice. [Para 81 [473-G) , 
469 
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SUPREME COURT REPORTS 
[2017] I S.C.R. 
1.2 Section 386 Cr.P.C. deals with the powers of the 
appellate court. As per Section 386 (b) Cr.P.C, 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. Though the 
word "retrial" is used under Section 386(b )(i) Cr.P.C., the powers 
conferred by this elause 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 or that irregularity 
has resulted in miscarriage of justice. An order for retrial may be 
passed in cases where the original trial has not heen 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. [Paras 10, 11] (474-
F-H; 475-A-B] 
1.3 'De 11ovo' trial means a "11ew 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. [Para 12] (475-C] 
1.4 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 
condusion. The Sigh Court erred in remitting the matter back 
to the trial court for fresh trial and the impugned order cannot be 
sustained. the impugned judgment of the High Court is set aside. 
The matter is remitted back to the High Court for consideration 
of the matter afresh. (Paras 18, 19) (480-C-D, E-F] 
AJ

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