SATYAJIT BANERJEE AND ORS.versusSTATE OF WEST BENGAL AND ORS.

A                     SATY AJIT BANERJEE AND ORS.
                                   v.
                    STATE OF WEST BENGAL AND ORS.

                             NOVEMBER 23, 2004

B          [Y.K. SABHARWAL AND D.M. DHARMADHIKARI, JJ.]

         Penal Code, 1860 ; Ss. 306 and 498/Code of Criminal Procedure,
    1973; Ss. 311 and 401 :

C         Wife committed suicide due to torturing by husband and /n-laws-
    Trial Court acquitted all the accused holding the evidence not reliable-
    High Court directed de novo trial on the ground of lack of evidence, trial
    Court ought to have invoked its revisional power to examine some of the
    important witnesses/additional witnesses-Correctness of-:Held : High
D   Court's directions for fresh trial from stage one and in the light of the
    formula suggested likely to be mistaken by the trial Court as a mandate
    to record verdict of conviction-The evidence recorded at the initial trial
    can not be wiped out/erased-Trial Court directed to take decision on the
     basis of entire evidence, in accordance with law-Constitution of India-
    Article 136.
E
         Revisional Jurisdiction of High Court-Invoking of

         Due to cruel treatment meted out by the husband and his family
    members, the wife committed suicide. Mother of the deceased claimed
    that the First Information Report was lodged immediately after the
F
    incident. However, she could not produce the same but produced another
    FIR which was lodged belatedly. A suicide note stated to be written by
    the deceased was recovered from the custody of her mother-in-law. The
    note allegedly disclosed her illicit relationship with a person. However,
    the mother of the deceased in her deposition stated about physical and
G   mental torture meted out to her daughter by the husband and in-laws
    as she could not bear child; and that the suicide note was not in her
    writing. Other witnesses did not support the case of the prosecution.
    Trial Court did not accept the case of the prosecution as evidence
    regarding cruel treatment to the deceased was not reliable. Hence, it
H   acquitted all the accused.
                                       294
                  SA TY AJIT BANERJEE v. STATE                        295

     Aggrieved, mother of the deceased preferred a Revision Petition.        A
Noticing serious infirmities in the case of the prosecution, High Court
observed that since the prosecution lacks in bringing necessary evidence,
the trial Court ought to have invoked its power under Section 311
Cr.P.C. to examine the father of the deceased and other important
witnesses and could have remanded the case for decision afresh, from         B
stage one. Hence the present appeal.

      Accused-appellant contended that sub-section (3) of Section 401
Cr.P.C. prohibits High Court in its revisional jurisdiction to convert
acquittal into conviction; that the High Court by directing examination
of the additional witnesses and making certain observations has indirectly   C
suggested the trial Court to record a conviction on re-trial; and that
since the High Court by directing the trial Court to take a fresh decision
from stage one set at naught the evidence already recorded, such
directions are without jurisdiction.
                                                                             D
     Respondent-Complainant submitted that the decision of this Court
in "Best Bakery case" fully supports the decision of the High Court in
remanding the case for re-trial; and that it was incumbent upon trial
Court to invoke its power under Section 311 Cr.P.C. to summon all
relevant/necessary witnesses and evidence.
                                                                             E
     Disposing of the appeal, the Court

      HELD : I.I. In exercise of the discretionary jurisdiction under
Article 136 of the Constitution and keeping in view the stage of retrial,
this Court refrains itself from upsetting the whole judgment of the High
                                                                             F
Court. However it is necessary to set right some of the uncalled for
observations made by the High Court in the impugned judgment directing
re-trial. [302-B-C)

     1.2. High Court ought not to have directed the trial Court to hold
a de nova trial and take decision on the basis of so called "suggested       G
formula'. The High Court in its concluding part of the judgment does
state that any observation in its judgment should not influence the mind
of the trial Court but, at the same time, the High Court directs the trial
Court to take 'a fresh decision from stage one' on the basis of the
'suggested formula'. The said observations and directions are likely to      H
    296                  SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   be mistaken by the trial Court as if there is a mandate to it to record
    the verdict of conviction against the accused regardless of the worth and
    weight of the evidence before it. (302-E-F-G]

         1.3. Best Bakery case was an extraordinary case in which this Court
B   was convinced that the entire prosecution machinery was trying to
    shield the accused, the rioters and the witnesses were terrified and
    intimidated with the intention to keep them away from the Court. The
    entire trial was a farce. It is in these extraordinary circumstances, the
    Court not only directed a de novo trial of the whole case but made
    directions for appointment of the new prosecutor and retrial out of the
C   State of Gujarat. The law so laid down in 'Best Bakery Case' cannot be
    applied to all cases against the established principles and criminal
    jurisprudence. (302-G-H; 303-A-B-C]

          Zahira Habibulla Sheikh v. State of Gujarat, (2004) 4 SCC 158,
D   distinguished.

         1.4. The evidence already recorded at the initial trial cannot be
    erased or wiped out from the record of the case. The trial Court has to
    decide the case on the basis of the evidence already on record and the
    additional evidence w:1ich would be recorded on retrial. After retrial,
E   the trial Court shall take a decision on the basis of the entire evidence
    on record and strictly in accordance with law, without in any manner,
    being influenced or inhibited by anything said on the evidence, in the
    judgment of the High Court or this Court. (303-D-E-F]

f       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    1331 of 2004.

        From the Judgment and Order dated 22.8.2002 of the Calcutta High
    Court in Crl.R. No. 1982 of 2001.

G         Rajesh Srivastava for the Appellants.

         P.K. Ghosh, Arun K. Sinha and Rakesh Singh, Tara Chandra Sharma,
    Ms. Neelam Sharma, Rajeev Sharma and Tarun Sharma for the Respondents.

H         The Judgment of the Court was delivered by
      SATY AJIT BANERJEE v. STATE [DHARMADHIKARI, J.]                     297

     DHARMADHIKARI, J : Leave to appeal, as prayed for, is granted.               A

     Counsel for the parties are heard at length.

     The appellants are accused of commission of offence of alleged cruel
treatment meted out to deceased-Kana Banerjee, punishable under Section           B
498A of the Indian Penal Code and abetting her suicidal death punishable
under Section 306, IPC.

     On the evidence produced by the prosecution, the trial court acquitted
them. But in revision, preferred by mother of the deceased, the High Court
by the impugned order has set aside the acquittal and directed a de novo trial.   C
    The necessary facts leading to the trial and eventual remand by the
High Court for fresh trial are as under:

        Appellant No. 1 was married to the deceased in the year 1990. She         D
was employed in Railways and was regularly attending to her duties. Her
parents also Jived not far away from her matrimonial home. On 25. l 0.1995
she was found dead. The accused-husband had informed her parents of her
death. It is the case of her mother that soon after the incident, a First
Information Report was lodged with the police alleging harassment and
cruel treatment to her by the accused. The said FIR has not been produced.        E
The FIR which was produced was lodged on 22.12..1995 which Jed to the
prosecution, and acquittal of the accused by the trial court.

       In the course of investigation a suicide note was seized from the
mother-in-law of the deceased. The contents of the suicide note read that         F
the deceased had developed illicit relationship with some other person and
it was no longer possible for her to deceive her husband. It was further
written in the suicide note that she was lucky to get such a husband and her
father should treat him well and arrange for his second marriage after her
death.
                                                                                  G
     In his post-mortem report the Autopsy Surgeon opined that the cause
of death was poisoning and also hanging as ligature marks were found on
her neck.

     The prosecution examined mother of the deceased as PW8 and three             H
    298                   SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   other witnesses living in the neighbourhood. The mother in her deposition
    stated that in her frequent visits to the house of the accused the deceased
    used to complain about her physical and mental torture by the accused but
    had asked her mother not to disclose this fact to her father who was a heart-
    patient. The mother also deposed that the deceased was medically examined
B   by Doctor Baidyanath Chakroborty who had opined that there was no
    possibility of her bearing child in her womb and she should opt for test tube
    baby. She further deposed that after one and a half years of her marriage,
    the deceased did conceive but in the fallopian tube and that conception was
    terminated in a hospital at Aliduar. The allegation of the mother is that for
    the aforesaid reason, the accused got annoyed and increased their torture on
c   her. She stated that immediately after her daughter's death, an FIR was
    lodged by father of the deceased and subsequently she also lodged an FIR
    in writing. The delay in second FIR was explained saying that for a few
    months she was mentally disturbed. In the cross-examination she admitted
    to have derived knowledge that her daughter had left a suicide note containing
D   the writings abovementi.oned. When cross-examined she did not dispute that
    the suicide note was not in the writing of the deceased. The other three
    witnesses PW2,. PW3 and PW4 examined by the prosecution to prove the
    alleged cruel treatment of the deceased by the accused did not support the
    prosecution case and were declared hostile. The opinion of the hand-writing
    expert, on the suicide note, was filed but he was not examined in proof of
E   his opinion.

          The trial court, by appreciating and weighing the evidence on record
    did not accept the case of the prosecution. The First Information Report
    alleged to have been lodged soon after the incident was not proved. The
F   second FIR was lodged after a delay of two months. There was no convincing
    explanation for the same. The learned trial judge observed that conduct of
    mother of the deceased showed that she had tried to develop the prosecution
    case by introducing new stories step-by-step. The trial judge has also observed
    thus:

G            "This suicidal note has come from the side of prosecution and as
             such, this Court cannot rule out the contents of the same. Taking
             together the contents of suicidal note and belated FIR I have reasons
             to hold that this FIR was lodged after two months by some wrong
             advice. Moreover, the explanation given in the FIR does not appear
H            to be convincing. It is the settled principle that there is every
     SATYAJIT BANERJEE v. STATE [DHARMADHIKARI, J.]                    299

        possibility of concoction, embellishment, motivation in a belated      A
        FIR I have already observed that PW 8 has tried to develop the
        prosecution case by introducing some new stories which is far away
        from the prosecution case and, as such, she cannot be considered
        to be faithful witness. Moreover she has failed to explain by
        convincing reason a~out inordinate delay in lodging the FIR. Her       B
        evidence has not been corroborated by a single prosecution witness
        even."

      On the medical evidence, the trial court observes thus:

        "That the Autopsy Surgeon had recorded that there was a ligature       C
        mark on her neck and the cause of death was indosulfan-poison in
        her body."

      On the evidence produced, the trial court has recorded his conclusion
that evidence of cruel treatment to the deceased is not reliable and the       D
accused cannot be held guilty of the suicidal death. The trial acquitted all
of them.

     The mother of the deceased preferred a revision to the High Court. The
High Court did take note of the various infirmities in the prosecution case,
such as seizure of suicide note by the investigating agency 125 days after     E
the incident, non-examination of Hand-Writing Expert, belated FIR and
single testimony of the mother of the deceased on the allegation of cruelty.
The High Court also took note of the fact that the post-mortem reported
presence of ligature mark on the neck of the deceased indicating hanging.
Presence of poison in the body was also found. Even after noticing the above   F
serious infirmities in the prosecution case, the High Court observes:

         "The learned trial court ought to have been more, without meaning
         any disrespect, dynamic and to have taken active truth instead of
         resigning to the fate as ordained by the prosecution."
                                                                               G
      The High Court then went on to observe that where prosecution lacks
in bringing necessary evidence, the trial court ought to have invoked its
powers under Section 311 of the Cr.P.C. and summoned for examining the
father of deceased and other additional witnesses whom it considered
necessary. The High Court by observing thus set aside the order of acquittal   H
    300                   SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   passed by the trial court and directed remand of the case for fresh decision
    from stage one. 'In the concluding part of its judgment, the High Court made
    the following observation:

             "Lest it may even unconsciously influence the mind of the learned
             trial court, while on remand it is made absolutely clear that by way
B
             of guiding formula the observations here-in-above have been made
             but it cannot be said to have a binding effect on the learned trial
             court which would be free to arrive at its independent conclusion
             in accordance with law and in the suggested formula here-in-
             above."
c
                                                             [Emphasis supplied}

         Learned counsel appearing for the accused assails the order ofremand
    made by the High Court and the above mentioned observations made
D   therein. It is submitted that sub-section (3) of Section 401 prohibits the High
    Court in its revisional jurisdiction to convert acquittal into conviction. By
    directing examination of additional witnesses under Section 311 and making
    observations mentioned above it has indirectly suggested the trial court to
    record a conviction on retrial.

E        Strong exception has been taken on behalf of the accused to the course
    adopted by the High Court of directing a retrial. Reliance has been placed
    on K.Chinnaswamy Reddy v. State of Andhra Pradesh, [1963] 3 SCR 412
    at 413 and particularly on the following observations mentioned therein on
    the scope of identical provisions of revision in the old Code of Criminal
F   Procedure.

             "That it was open to a High Court in revision and at the instance
             of a private party to set aside an order of acquittal though the State
             might not have appealed. But such jurisdiction should be exercised
             only in exceptional cases, as where a glaring defect in the procedure
G            or a manifest error oflaw leading to a flagrant miscarriage ofjustice
             has taken place. When Section 439(4) of the Code forbids the High
             Court from converting a finding of acquittal into one of conviction,
             it is not proper that the High Court should do the same indirectly
             by ordering a retrial. It was not possible to lay down the criteria
H            for by which to judge such exceptional cases. It was, however, clear
      SATYAJIT BANERJEE v. STATE [DHARMADHIKARI, J.]                        301

         that the High Court would be justified in interfering in cases such        A
         as (1) where the trial court had wrongly shut out evidence sought
         to be adduced by the prosecution (2) where the appeal court had
         wrongly held evidence admitted by the trial court to be inadmissible
         (3) where material evidence has been overlooked either by the trial
         court or the court of appeal or, (4) where the acquittal was based         B
         on a compounding of the offence not permitted by law and cases
         similar to the above."

      It is further argued for the accused that merely because a different view
of the evidence is possible, the High Court, in exercise ofrevisional powers
ought not to have directed a retrial. Reliance is p.Iaced on Bansi Lal v.           c
Laxman Singh, [1986] 3 SCC 444.

     Lastly; it is submitted on behalf of the accused that direction of the
High Court to .the trial court to record further evidence and take a fresh
decision from stage one' is totally without jurisdiction as it suggests that the    D
evidence already recorded in the initial trial should be given no consideration.

        On the other side learned counsel appearing for the respondent-
  complainant made streneous efforts to support the impugned order for retrial
· passed by the High Court. It is submitted that prosecution has left lacunae
  in the case which !>hould not go in favour of the accused. Reliance is placed     E
  on Ram Bihari Yadav v. State of Bihar, [1998] 4 SCC 517.

       On behalf of the complainant very strong reliance has been placed on
 the landmark decision of this Court in the case ofZahira Habibulla Sheikh
 V. State of Gujarat, [2004] 4 sec 158 which arise from mass killings during        F
 Gujarat riots, commonly known to the public as "Best Bakery Case." It is
 submitted that the above decision of this Court fully supports the course
 adopted by the High Court in remanding the case for retrial. It is also
 submitted that where prosecution has left an inherent weakness in the case,
 it was not only expected but incumbent on the trial judge to invoke his power
 under Section 311 Cr.P.C. and summon all relevant witnesses and evidence.          G
 As the trial court failed to discharge its duty to hold a fair trial to discover
 the truth, the High Court was fully justified in direCting a retrial and 'afresh
 decision from stage one. '

       In the course of hearing of this case, we are informed that before this      H
    302                    SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   Court stayed operation of the impugned judgment, the retrial as directed by
    the High Court had already commenced. The trial judge has recorded the
    statement of father of the deceased and only remaining part of the evidence
    is to be recorded.

B         In exercise of the discretionary jurisdiction under Article 136 of the
    Constitution and keeping in view the stage ofretrial we refrain from upsetting
    the whole judgment of the High Court. We however consider it necessary
    to set right some of the uncalled for observations made by the High Court
    in the impugned judgment directing retrial.

C         The cases cited by the learned counsel show the se tied legal position
    that the revisional jurisdiction, at the instance of the con.,.. .ainant, has to be
    exercised by the High Court only in very exceptional cases where the High
    Court finds defect of procedure or manifest error of law resulting in flagrant
    miscarriage of justice.
D
         The State has chosen not to prefer any appeal against acquittal. In the
    present appeal by the complainant it has filed a counter-affidavit and tried
    to support the order of remand passed by the High Court.

          Without going into the correctness of all the observations made by the
E   High Court in the impugned judgment, we find it necessary to clarify that
    the High Court ought not to have directed the trial court to hold a de novo
    trial and take decision on the basis of so called 'suggested formula.' The
    High Court in its concluding part of the judgment does state that any
    observation in its judgment should not influence the mind of the trial court
F   but, at the same time, the High Court directs the trial court to take 'a fresh
    decision from stage one' and on the basis of the 'suggested formula.'
    Learned counsel for the accused is justified in his grievance and apprehension
    that the aforesaid observations and directions are likely to be mistaken by
    the trial court as if there is a mandate to it to record the verdict of conviction
    against the accused regardless of the worth and weight of the evidence
G   before it.

         Since strong reliance has been placed on the Best Bakery Case (Gujarat
    Riots Case supra) it is necessary to record a note of caution. That was an
    extraordinary case in which this Court was convinced that the entire
H   prosecution machinery was trying to shield the accused i.e. the rioters. It
      SATYAJIT BANERJEE v. STATE [DHARMADHIKARI, J.]                      303

was also found that the entire trial was a farce. The witnesses were terrified    A
and intimidated to keep them away from the court. It is in the aforesaid
extraordinary circumstances that the court not only directed a de novo trial
of the whole case but made further directions for appointment of the new
prosecutor with due consultation of the victims. Retrial was directed to be
held out of the State of Gujarat.                                                 B

      The law laid down in the 'Best Bakery Case' in the aforesaid
extraordinary circumstances, cannot be applied to all cases against the
established principles of criminal jurisprudence. Direction for retrial should
not be made in all or every case where acquittal of accused is for want of
adequate or reliable evidence. In Best Bakery case, the first trial was found     C
to be a farce .and is described as 'mock trial.' Therefore, the direction for
retrial was in fact, for a real trial. Such extraordinary situation alone can
justify the directions as made by this Court in the Best Bakery Case (supra).

      So far as the position of law is concerned we are very clear that even      D
if a retrial is directed in exercise of revisional powers by the High Court,
the evidence already recorded at the initial trial cannot be erased or wiped
out from the record of the case. The trial judge has to decide the case on
_the basis of the evidence already on record and the additional evidence
which would be recorded on retrial.
                                                                                  E
     With the above clarification, we decline to interfere in the order of
remand. To put the matter beyond any shadow of doubt we further clarify
and reiterate that the trial judge, after retrial, shall take a decision on the
basis of the entire evidence on record and strictly in accordance with law,
without in any manner, being influenced or inhibited by anything said on          F
the evidence in the judgment of the High Court or this Court.

S.K.S.                                                    Appeal disposed of.