MOHD. HUSSAIN @ JULFIKAR ALI versus THE STATE (GOVT. OF NCT) DELHI

Citation: [2012] 10 S.C.R. 480 · Decided: 31-08-2012 · Supreme Court of India · Bench: RAJENDRA MAL LODHA · Disposal: Reference answered

Cited by 7 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
[2012] 10 S.C.R. 480 
MOHD. HUSSAIN @ JULFIKAR ALI 
v. 
THE STATE (GOVT. OF NCT) DELHI 
(Criminal Appeal No. 1091 of 2006) 
AUGUST 31, 2012 
[R.M. LODHA, ANIL R. DAVE AND 
SUDHANSU JYOTI MUKHOPADHAYA, JJ.) 
Code of Criminal Procedure, 1973 - s. 386 - Power of 
C appellate court to order retrial - Held: The appellate court 
hearing criminal appeal has power to order retrial u/s. 386(b) 
- But such power should be exercised in exceptional and rare 
cases when such course becomes indispensable to avert 
failure of justice - Exercise of such power depends on facts 
D and circumstances of the case -
The present case is of 
extremely serious and exceptional nature, where retrial of the 
accused is indispensable -
The matter requires to be 
remanded for a de novo trial. 
E 
Administration of Criminal Justice: 
Speedy trial - Right of accused - Held: Such right of the 
accused must be weighed alongwith the nature and gravity of 
crime, persons involved, social impact and social needs -
Deprivation of such right per se does not prejudice the 
F accused - Constitution of India, 1950 - Article 21. 
'Fair trial' and 'Speedy trial' - Difference between. 
Words and Phrases: 
G 
'Retrial' - Meaning of 
The appellant-accused was prosecuted u/ss. 302/307 
IPC and s. 3 and in the alternative s. 4 of Explosive 
Substances Act. The allegation against the accused was 
H 
480 
MOHD. HUSSAIN @ JULFIKAR ALI v. STATE (GOVT. 481 
OF NCT) DELHI 
that he had planted a bomb in a bus, explosion of which 
A 
resulted in 4 deaths and injuries to 24 persons. 
Trial court convicted the accused u/s. 302/307 IPC 
r/w.s. 3 of the Act and sentenced him to death. The 
conviction and sentence was confirmed by the High 
8 
Court. 
In appeal to this Court, the two judges of the Division 
Bench were of the opinion that the appellant-accused 
was denied due process of law and the trial held against 
him was contrary to the procedure prescribed under the 
C 
provisions of Cr.P.C, because he was denied right of 
presentation by counsel in the trial. However, they 
differed on the point whether the matter required to be 
remanded for a de novo trial in the facts and 
circumstances of the case. Therefore, the matter was 
D 
referred to the three judges Bench to decide the point. 
Answering the reference, the Court 
HELD: 1.1. The appellate court hearing a criminal 
appeal from a judgment of conviction has power to order 
E 
the retrial of the accused under Section 386 Cr.P.C . 
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 
F 
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 
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guiding factor for retrial must always be demand of 
justice. Obviously, the exercise of power of retrial under 
Section 386(b) Cr.P.C. will depend on the facts and 
circumstances of each case for which no straitjacket 
formula can be formulated but the appeal court must H 
482 
SUPREME COURT REPORTS 
[2012] 10 S.C.R. 
A 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. [Para 42) [509-D-H; 510-A] 
B 
1.2. In the present case, the incident is of the year 
1997. It occurred in a public transport bus when that bus 
was carrying passengers and stopped at a bus stand. 
The moment the bus stopped, an explosion took place 
C inside the bus that ultimately resulted in death of four 
persons and injury to twenty-four persons. The nature of 
the incident and the circumstances in which it occurred 
speak volume about the very grave nature of offence. As 
a matter of fact, the appellant has been charged for the 
offences under Section 302/307 IPC and Section 3 and, 
D in the alternative, Section 4(b) of Explosive Substances 
Act. It is true that the appellant has been in jail since 
09.03.1998 and it is more than 14 years since he was 
arrested and he has passed through mental agony of 
death sentence and the retrial at this distance of time shall 
E prolong the culmination of the criminal case. But th

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