NASIB SINGH versus THE STATE OF PUNJAB & ANR.

Citation: [2021] 13 S.C.R. 566 · Decided: 08-10-2021 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed

Cited by 6 judgment(s) · cites 9 · see the full citation network in Lexace

Judgment (excerpt)

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[2021] 13 S.C.R. 566
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NASIB SINGH
v.
THE STATE OF PUNJAB & ANR.
(Criminal Appeal Nos. 1051-1054 of 2021)
OCTOBER 08, 2021
[DR. DHANANJAYA Y CHANDRACHUD, VIKRAM NATH
AND B.V. NAGARATHNA, JJ.]
Code of Criminal Procedure, 1973: ss. 386, 223 – Power of
appellate court to direct retrial – Scope of – Held: Appellate Court
may direct a retrial only in ‘exceptional’ circumstances to avert a
miscarriage of justice – Mere lapses in the investigation are not
sufficient to warrant a direction for re-trial – Only if the lapses are
so grave so as to prejudice the rights of the parties, a retrial can be
directed – On facts, two FIR’s relating to the offences in the same
transaction, one arising out of the alleged gang rape of the
prosecutrix; and other arising out of the suicide of the prosecutrix
– Order by the High Court remitting the judgments of conviction
and acquittal of the Additional Sessions Judge in the trials arising
out of the two FIRs and directing that trials be clubbed and tried
together as provided u/s. 223, is a travesty of justice – With a lapse
of over 7 years since the date of the incident, a retrial would not
advance the cause of justice but would result in a serious miscarriage
of justice – Even if it is conceded that the alleged offences committed
in the two FIRs were committed in the course of the same transaction,
within the meaning of the phrase in s. 223(d), it does not warrant
the exercise of discretion to direct a retrial followed by a joint trial
– It was imperative for the accused to prove that the separate trials
caused a miscarriage of justice – No explanation rendered on the
aspect of a miscarriage of justice – Furthermore, the holding of
separate trials was not contrary to law and that there was no resultant
failure of justice demonstrated to the satisfaction of the High Court
– Thus, the order by the High Court set aside.
Allowing the appeals, the Court
HELD: 1.1 Section 386 CrPC defines the powers of the
appellate court. Under clause (a), the appellate court is
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empowered inter alia in an appeal from an order of acquittal: to
reverse such order and direct that a further inquiry be made; or
that the accused be re-tried or committed for retrial; or find him
guilty and pass sentence on him according to law. The power of
the appellate court to order a retrial is also recognized in clause
(b)(i) in the context of an appeal from a conviction and in clause
(c)(i) in an appeal for enhancement of sentence. [Para 20][584-G;
586-A-C]
1.2 A retrial would not be ordered unless the appellate court
is satisfied that the court trying the proceeding had no jurisdiction;
the trial was vitiated by serious illegalities and irregularities or
on account of a misconception of the nature of the proceedings
as a result of which no real trial was conducted; or the prosecutor
or an accused was for reasons beyond their control prevented
from leading or tendering evidence material to the charge and
that in the interest of justice, the appellate court considers it
appropriate to order a retrial. An order of retrial wipes out from
the record the earlier proceeding and exposes the present
accused to another trial. It is for that reason that a retrial cannot
be ordered merely on the ground that the prosecution did not
produce proper evidence and did not know how prove their case.
[Para 22][587-E-H]
1.3 The principles emerging on retrial can be formulated
as under:
(i) The appellate court may direct a retrial only in
‘exceptional’ circumstances to avert a miscarriage of justice;
(ii) Mere lapses in the investigation are not sufficient to
warrant a direction for re- trial. Only if the lapses are so grave so
as to prejudice the rights of the parties, can a retrial be directed;
(iii) 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;
(iv) 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
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
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the miscarriage of justice caused with reference to the evidence
and investigatory process;
(v) If a matter is directed for re-trial, the evidence and record

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