AJAY KUMAR GHOSHAL ETC.versusSTATE OF BLHAR & ANR.

                          [2017] 1 S.C.R. 469



                  AJAY KUMAR GHOSHAL ETC.                                   A
                                   v.

                     STATE OF BlHAR & ANR.
                (Criminal Appeal Nos. 119-122 of2017)
                                                                            B
                         JANUARY 31, 2017

           [DIPAK MISRA AND R. BANUMATHI, JJ.)
        Code of Criminal Procedure, 1973 - s. 386 - Powers of the
 appellate court - High Court ordering re-trial of the dowry death          c
 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     D
 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
                                                                            E
 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.
                                                                            F
      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
                                                                            G
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) ,
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                                469

                                                           --·
470            SUPREME COURT REPORTS                        [2017] I S.C.R.


A           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,
B     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
c     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
D
      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-
E     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.
F     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
0     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]
H
 AJAY KUMAR GHOSHAL ETC. v. STATE OF BIHAR & ANR.                       471


      Mina Lolita Baruwa v. State of Orissa and Ors. (2013)             A
      16 SCC 173 : (2013] 16 SCR 788; Nar Singh v. State
      of Haryana (2015) 1 SCC 496 : (2014] 12 SCR 218;
    . Pandit Ukha Ko/he v. State of Maharashtra (1964] SCR
      926; State of MP. v. Bhooraji and Ors. (2001) 7 SCC
      679: (2001] 2 Suppl. SCR 128; Gopi Chand v. Delhi
                                                                         B
      Administration AIR 1959 SC 609 : (1959] Suppl. SCR
      87; Zahira Habibulla H. Sheikh and Anr. v. State of
      Gujarat and Ors. (2004) 4 SCC 158 : (2004] 3 SCR
      1050; Mohd Hussain @ Julfikar Ali v. State (Govt. of
      NCT of Delhi) (2012) 9 SCC 408 : (2012] 10 SCR 480
      - referred to.                                                     c,
                       Case Law Reference
(2013] 16 SCR 788              referred to             Para4
[2014) 12 SCR 218              referred to             Para 4, 9
[1964] SCR 926                 referred to             Para 12           D

[2001) 2 Suppl. SCR 128        referred to             Para 13
[1959] Suppl. SCR 87           referred to             Para 15
[2004] 3 SCR 1050              referred to             Para 16
                                                                         E
(2012] 10 SCR 480               referred .to           Para 17
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. JI9-122 of2017.
      From the Judgment and Order dated 28.08.2015 of the High Court
of Judicature at Patna in Criminal Appeal (SJ) No-230/2015, 275/2015,    F
232/2015 and 243/2015.
     Nagendra Rai, Sr. Adv., Smarhar Singh, Advs. fortheAppellants.
     Gopal Singh, Manish Kumar, Advitya Awasthi, Mithilesh Kumar
Singh, Manju Singh, J. Bangarvi, T, Verma, Advs. for the Respondent.
                                                                         G
     The Judgment of the Court was delivered by
     R. BANUMATID, J. L These appeals are directed against the
common final order dated 28.08.2015 passed by the High Court of
Judicature at Patna.in Criminal Appeal (SJ) No.230 of 2015, Criminal
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    472             SUPREME COURT REPORTS                           [20 I 7] I S.C.R.


    A     Appeal (SJ) No.275of2015, Criminal Appeal (SJ) No.232of2015 and
          Criminal Appeal (SJ) No.243 of2015 setting aside the judgment of the
          trial court and directing the retrial of Session Trial No.14 of2008/637 of
          2008 against the appellants.
                2. Briefly stated, case of the prosecution is that on 15.05.2007,
    B     Asim Kumar Chatarjee (PW-5) filed a complaint before the Officer-in-
          Charge, Tilakmanjhi, stating that his sister Bandhavi @ Bani Ghoshal
          was married to Raj Kumar son of Ajay Kumar Ghoshal on 03.02.2007
          and at the time of her marriage, the complainant gave cash and ornaments
          as per his capacity and all the usual gifts given in a marriage to the
          accused-appellants. PW-5 asserted that the husband, father-in-law and
    c     mother-in-law (Munmun Ghoshal) kept demanding dowry from his
          deceased sister and upon his inability to fulfill their demands, they in turn
          tortured Bandhavi Ghoshal mentally and physically. The complainant
          stated that on 15.05.2007, he received information from Bhagalpur about
          the death of his sister deceased Bandhavi @ Bani Ghoshal in her
    D     matrimonial home, in suspicious circumstances and he went to Bhagalpur.
          The complainant stated that he saw the dead body of his sister and
          noticed that her wrist veins were cut and her body had the marks of
          hanging, assault and electrocution. On the basis of aforesaid, FIR was
          registered under Section 304 (B), Section 34 !PC at Kotwali (Tilkamanjhi)
          P.S. Case No.281 of2007. After completion of investigation, the charge-
     E    sheet was filed against the appellants under Sections 302, 3048, 201,
          498A, 1208 IPC and s.ections 3 and 4 of Dowry Prohibition Act.
\               3. In order to prove guilt of the accused, the prosecution has
          examined twelve witnesses and exhibited documents and material objects.
          Upon consideration of evidence, the trial court vi de judgment dated
     F    06.04.2015, held that the prosecution has proved the guilt of the accused
          beyond reasonable doubt and convicted all the appellants/accused
          persons, by judgment dated 09.04.2015. For conviction under Section
          304B read with Section 1208 JPC, the trial court imposed sentence of
          imprisonment for ten years on each of the appellants. The appellants
     G    were convicted under Section 20 I !PC and were sentenced to undergo
          rigorous imprisonment for five years as well as fine of Rs. I 0,000/- each
          with default sentence and rigorous imprisonment for two years for the
          conviction under Section 4 of Dowry Prohibition Act.
               4. Being aggrieved by the verdict of conviction and the sentence
          imposed upon them, the appellants/accused preferred separate appeals
     H
 AJAY KUMAR GHOSHAL ETC. v. STATE OF BIHAR & ANR.                                  473
               [R. BANUMATHI, J.)

before the High Court. Upon consideration of the contentions of the                 A
parties, the High Court in paras (29) and (30) of its judgment pointed out
certain lapses on the part of Investigating Officer/trial court and held
that the trial court failed to take appropriate action on the lapses. After
quoting relevant extracts from the judgments in Mi11a La/ita Baruwa
vs. State of Orissa a11d Ors. (2013) 16 SCC 173 and Nar Si11g'1 vs.
                                                                                   B
State ofHarva11a (2015) I SCC 496, the High Court set aside the
judgment of the conviction and sentence recorded by the trial court and
the. matter was remitted back to the trial court to proceed afresh in
accordance with law. Being aggrieved, the accused-appellants have
preferred these appeals.
      5. Learned counsel forthe appellants submitted thatthe High Court
                                                                                    c
being the First Appellate Court should have appreciated the evidence on
its own merits; instead it erred in remitting the matter back to the trial
court to proceed afresh and the order for de novo trial would cause
serious prejudice to the accused-appellants.
       6. We have heard the learned counsel for the State as well as                D
counsel for the complainant i.e. brother of the deceased Asim Kumar
Chatarjee. Both of them submitted that the evidence available on record
is sufficient to sustain the conviction of the accused-appellants.
      7. We have carefully considered the rival contentions and perused
the impugned order and other materials on record. The question falling              E
for consideration is. whether there was serious irregularities in the
prosecution case thereby necessitating retrial and whether the
irregularities pointed out by the High Court are such as resulting in
miscarriage of justice thereby constraining the High Court to set aside
the judgment of the Sessions Court and direct for retrial.                          F
      8. In para (29) of its judgment, the High Court pointed out certain
lapses; but has not stated as to how such alleged lapses has resulted in
miscarriage of justice necessitating retrial. Certain lapses either in the
investigation or in the 'conduct of trial' are not sufficient to direct retrial.
The High Court being the First Appellate Court is duty bound to examine
                                                                                    G
the evidence and arrive at an independent finding based on appraisal of
such evidence and examine whether such lapses actually affect the
prosecution case; or such lapses have actually resulted in failure ofjustice.
The circumstances that should exist for warranting retrial must be such
that whether the trial was undertaken by the court having no jurisdiction
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474             SUPREME COURT REPORTS                             [2017) I S.C.R.


A     or trial was vitiated by serious illegality or irregularity on account of
      misconception of nature of proceedings or that irregularity has resulted
      in miscarriage ofjustice.
            9. The High Court copiously extracted the judgment in case of
     Nar Singh vs. State ofHaryana (2015) I SCC 496 to remit the matter
B to the trial court for proceeding afresh. In Nar Sing/1 's case, some of
     the important questions like Ballistic Report and certain other incriminating
     evidence were not put to the accused and the same was not raised in the
     trial court or in the High Court. It was felt that the accused should have
    .been questioned on those incriminating evidence and circumstances; or
     otherwise prejudice would be caused to the accused. In such peculiar
C ·facts and circumstances, Nar Sing/1 's case was remitted to the trial
     court for proceeding afresh from the stage of Section 3 I3 Cr.P.C. Be it
     noted that in Nar Singh 's case, this Court has referred to a catena of
     other judgments holding that omission to put certain questions to the
     accused under Section 313 Cr.P.C. would not cause prejudice to the
D ' accused. It depends upon facts and circumstances of each case and
     the nature of prejudice caused to the accused. In our view, the High
     Court has not properly appreciated Nar Singh 's case where this Court
     laid down that the appellate court can order for fresh trial from the stage
     of examination under Section 313 Cr.P.C., only in cases where failure to
     question the accused on certain incriminating·evidence has resulted in
E serious prejudice to the accused. The High Court, in our view, has not
     .properly appreciated the ratio laid down in Nar Singh 's case and erred
     in applying the same to the present case.
             10. 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,
F     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
G.    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)
      Cr.P.C., 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
H
 AJAY KUMAR GHOSHAL ETC. v. STATE OF BJHAR & ANR.                               475
               [R. BANUMATHI, J.]

that should exist for warranting a retrial must be such that where the          A
trial was undertaken by the Court having no jurisdiction, or trial was
vitiated by serious illegality or irregularity on account ofthe 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
                                                                                B
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 ifthere had not been a trial in first instance. Undoubtedly,
the app,ellate court has power to direct the lower court to hold 'de novo'      c
trial. But the question is when such power should be exercised. As
stated in Pandit Ukha Ko/he vs. State o[Maharashtra (1964) SCR
926, the Court held that:
       "An order for retrial of a criminal case is made in
       exceptional cases, and not unless the appellate court                     D
       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                       E
       trial or that the Prosecutor or an accused was, for
       reasons over which be bad no control, prevented from
       leadin2 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                        F
       be put on his trial again. An order of re-trial wipes
       ou.t 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                 G
       ordinarily be countenanced when it is made merely
       to enable the prosecutor to lead evidence which be
       could but has not cared to lead either on account of
       insufficient appreciation of the nature of the case or
       for other reasons."
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476             SUPREME COURT REPORTS                           [2017] I S.C.R.


A            13. This Court, while dealing with the question whether the High
      Court should have quashed the trial proceedings only on account of
      declaration of the legal position made by the Supreme Court concerning
      the procedural aspect about the cases involving offences under the SC/
      ST Act, this Court stated, "a de nova trial should be the last resort and
      that too only when such a course becomes so desperately indispensable;
B
      it should be limited to the extreme exigency to avert 'a failure ofjustice'.
      Observing that any omission or even the illegality in the procedure which
      does not affect the core of the case is not a ground for ordering a de
      nova trial". In Stale ofM.P. vs. B/10oraii and Ors. (200 I) 7 SCC
      679, the Court went on to say further as follows:
c            "8 .... This is because the appellate court has plenary
             powers for revaluating and reappraising the evidence
             and even to take additional evidence by the appellate
             court itself or to direct such additional evidence to
             be collected by the trial court. But to replay the whole
D            laborious exercise after erasing the bulky records
             relating to the earlier proceedings, by bringing down
             all the persons to the court once again for repeating
             the whole depositions would be a sheer waste of time,
             energy and costs unless there is miscarriage of justice
             otherwise. Hence, the said course can be resorted to
E            when it becomes unpreventable for the purpose of
             averting "a failure of justice". The superior court
             which orders a de novo trial cannot afford to overlook
             the realities and the serious impact on the pending
             cases in trial courts which are crammed with dockets,
F            and how much that order would inflict hardship on
             many innocent persons who once took all the trouble
             to reach the court and deposed their versions in the
             very same case. To them and the public the re-
             enactment of the whole labour might give the
             impression that law is more pedantic than pragmatic.
G            Law is not an instrument to b~ used for inflicting
             sufferings on the people but for the process of justice
             dispensation."
            14. In B/10oraji's case, the Court referred to Chapter XXXV of
      the Code and, particularly, Sections461, 462 and 465 {I). Afternoticing
H
 AJAY KUMAR GHOSHAL ETC. v. STATE OF BIHAR & ANR.                           477
               [R. BANUMATHI, J.]

the above provisions, the Court observed in paragraphs (I 5) and (I 6) of   A
the order as follows:
       "15. A reading of the section makes it clear that the
       error, omission or irregularity in the proceedings held
       before or during the trial or in any enquiry were
       reckoned by the legislature as possible occurrences                  B
       in criminal courts. Yet the legislature disfavoured
       axing down the proceedings or to direct repetition of
       the whole proceedings afresh. Hence, the. legislature
       imposed a prohibition that unless such error, omission
       or irregularity bas occasioned "a failure of justice"
       the superior court shall not quash the proceedings                   c
       merely on the ground of such error, omission or
       irregularity.
       16. What is meant by a failure of justice occasioned
       on account of such error, omission or irregularity?
       This Court has observed in Sliamns(l/1eb M. Mu/ft(lni                D
       vs. State of K"rn"t"ka {2001 (2) SCC 577) thus:
          "23. We often hear about failure of justice and
          quite often the submission in a criminal court is
          accentuated with the said expression. Perhaps
          it is too pliable or facile an expression which                    E
          could be fitted in any situation of a case. The
          expression failure of justice would appear,
          sometimes, as an etymological chameleon (the
          simile is borrowed from Lord Diplock in Town
          Investments Ltd. v. Deptt. of the Environment,
          1977 (1) All E.R. 813). The criminal court,                        F
          particularly the superior court should make a
          close examination to ascertain whether there
          was really a failure of justice or whether it is
          only a camouflage."
     15. In Gopi Cfl(lnd vs. De/Iii Administmtion AIR I 959 SC 609,          G
a Constitution Bench of this Court was concerned with the criminal
appeals wherein plea of the validity of the trial and of the orders of
conviction and sentence was raised by the appellant. That was a case
where the appellant was charged for three offences which were required
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478            SUPREME COURT REPORTS                          (2017] l S.C.R.


A     to be tried as a warrant case by following the procedure prescribed in
      the Code of Criminal Procedure, 1860 but he was tried under the procedure
      prescribed for the trial of a summons case . .The procedure for summons
      case and warrants case was materially different. The Constitution Bench
      held that having regard to the nature of the charges framed and the
      character and volume of evidence led, the appellant was prejudiced;
B
      accordingly, set aside the orders of conviction and sentence and the
      Constitution Bench held as under:-
            "29•••••the offences with which the Appellant stands
            charged are of a very serious nature; and though it is
            true that he has had to undergo the ordeal of a trial
c           and has suffered rigorous imprisonment for some time
            tl!at would not justify his prayer that we should not
            order his retrial. In our opinion, having regard to the
            grnvity of.the offences charged against !he Appellant,
            the ends of justice require that we should direct that
D           he should be tried for the s.aid offences de novo
            according to law. We also direct that the proceedings
            to be taken against the Appellant hereafter should be
            cl.'mmenced without delay and should be disposed as
            expeditiously as possible."
E            16. In Za/1ira Habibul/a H. S/1eikliandAnr. vs. State of Gujarat
      and Ors. (2004) 4 SCC 158, [Best Bakery case] being an extraordinary
      case, the Supreme Court was convinced that the witnesses were
      threaten~d to keep themselves away from the Court and in such facts
      and circumstances of the case, not only the Court directed a 'de nova'
      trial but made further direction for appointment of the new prosecutor
F     and retrial was directed to be held out of the State of Gujarat. The law
      laid down in Best Bakery case for retrial was in the extraordinary
      circumstances and cannot be applied for all cases.
             17. After considering the question a "speedy trial" and "fair trial"
      to a person accused of a crime and after referring to a catena of decisions
G     and obsf'rving that guiding factor for retrial must always be demand of
      justice, in Mohd. Hussain@ Julfikar Ali vs. State (Govt. o(NCT of
      Delhi/ (2012) 9 SCC 408, this Court held as under:-
            "41. 'Speedy trial' and 'fair trial' to a person accused
            of a crime are integral part of Article 21. There is,
H
AJAY KUMAR GHOSHAL ETC. v.'STATE OF BIHAR & ANR.                 479
              [R. BANUMATHI, J.]

   however, qualitative difference between the right to          A
   speedy trial and the accused's right of fair trial. Unlike
   the accused's right of fair trial, deprivation of the right
   to speedy trial does not per se prejudice the accused
   in defending himself. The right to speedy trial is in
   its very nature relative. It depends upon diverse
                                                                  B
   circumstances. Each case of delay in conclusion of a
   criminal trial bas to be seen in the facts and
   circumstances or such case. Mere lapse of several
   years since the commencement of prosecution by itself
   may not justify the discontinuance of prosecution or
   dismissal of indictment. The factors concerning the            c
   accused's right to speedy trial have to be weighed
   vis-a-vis the impact of the crime on society and the
   confidence of the people in judicial system. Speedy
   trial secures rights to an accused but it does not
   preclude the rights of public justice. The nature and
                                                                  D
   gravity of crime, persons involved, social impact and
   societal needs must be weighed along with the right
   of an accused to speedy trial and if the balance tilts in
   favour of the former the long delay in conclusion of
   criminal trial should not operate against the
   continuation of prosecution and if the right of accused        E
   in the facts and circumstances of the case and
   exigencies of situation tilts the balance in his favour,
   the prosecution niay be brought to an end. These
    principles must apply as well when the appeal court
   is confronted with the question whether or not retrial
                                                                  F
   of an accused should be ordered.
   42. 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           G
   in a routine manner. A 'de novo trial' or 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
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480                SUPREME COURT REPORTS                        [2017] l S.C.R.


A            exercise of power of retrial under Section 386(b) of
             tt.e Code, will depend on the facts and circumstances
             of each case for which no strait jacket 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
B
             protection of law do not lose hope in legal system and
             the interests of the society are not altogether
             O"erlooked."
              18. As discussed earlier, the High Court has not shown as to how
      the alleged lapses pointed out by the High Court have resulted in
c     miscarriage of jusiice. When the accused prefers an appeal against
      their conviction and sentence, the appellate court is duty bound to consider
      the evid.:nce on record and independently arrive at a conclusion. In our
      considered view, the High Court erred in remitting the matter back to
      the trial court for fresh trial arid the impugned order cannot be sustained.
D            19. In the result, the impugned judgment of the High Court is set
      aside and these appeals are allowed. The matter is remitted back to the
      High Court for consideration of the matter afresh. The High Court shall
      afford sufficient opportunity to the accused-appellants and the prosecution
      and also to the informantAsim Kumar Chatarjee-brother of the deceased
E     (in terms of Section 301 Cr.P.C.) and proceed with the matter afresh in
      accordance with law. We make it clear that we have not expressed any
      opinion ;in the merits of the matter.
      Nidhi Jain                                                  Appeals allowed.


F