Supreme Court of India
STATE OF U.PversusABHAI RAJ SINGH AND ANR.
- Citation
- 2004 INSC 142
- Decided
- 8 March 2004
- Disposal
- Disposed off
- Bench
- DORAISWAMY RAJU
Holding
An appellate court cannot acquit merely because the trial record is destroyed; it must order reconstruction of the record or a retrial, and the High Court's order of acquittal was set aside.
Summary
The accused were convicted of murder under Section 302 read with Section 34 of the IPC. The trial court records were destroyed in a fire, and the High Court, after a long delay, concluded that reconstruction was impossible and ordered the acquittal of the accused. The Supreme Court held that the High Court erred by not exploring the possibility of reconstructing the records and by acquitting without a merits-based finding. Under Sections 385 and 386 of the CrPC, an appellate court must call for the record and, where records are lost, may order reconstruction or a retrial, but cannot acquit merely because the record is unavailable. The Court set aside the High Court's order, remitted the matter for fresh consideration, and directed the High Court to ensure reconstruction of the record within six months or, if reconstruction is impossible, to order a retrial.
Issues considered
- Whether an appellate court under Section 386 CrPC can acquit an accused when the trial court record is destroyed or unavailable.
- Whether the High Court was justified in directing acquittal without ordering reconstruction of the record.
- What powers does Section 386 CrPC confer on an appellate court in cases where the trial record is lost?
Legislation cited
- Code of Criminal Procedure, 1973s. 385, s. 386
- Indian Penal Code, 1860s. 302, s. 34
Subjects
Criminal ProcedureSection 386 CrPCrecord reconstructionacquittalmurder convictionappellate jurisdictionmissing trial recordsretrial
Judgment
'
I
r
A STATE OF U.P.
-
v.
ABHAI RAJ SINGH AND ANR.
MARCH 8, 2004
B [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]
Code of Criminal procedure, 1973; Sections 385 and 386/Penal Code,
I 860; Section 302 rlw Section 34:
C Murder-Conviction of accused by trial Court-Appeal admitted-High
Court called for records of the case-Trial Court informing that records were
not available as destroyed in fire-High Court granting further time-No
response from trial Court-High Court drawing inference that it was not
possible for trial Court to reconstruct the record, thus mandate oflaw contained
in Sections 385 and 386 Cr.P.C. could not be complied with, and directed
D acquittal of the accused-On appeal, Held: High Court could further explore
the possibility of reconstructing the records to effectively dispose of the
appeals-It came to abrupt conclusion that reconstruction was not possible
without keeping relevant aspects and consideration in view-It ought to have
directed trial Court to furnish information about reconstruction of record-It
E also failed to take initiative itself to find out as to the manner/method and
nature of attempts/efforts and exer_cise undertaken for reconstruction ofrecords
to avoid any miscarriage of justice resulting from any lapse, inaction/
perfunctory action-Matter remitted back to High Court for fresh consideration
and disposal in the light of the directions issued
F The question which arose in these appeals for consideration was as to
whether in exercise of power under Section 386 Cr.P.C., the appellate Court
would be justified in directing acquittal, when the records of the trial Court
were not placed before it on some ground or the other.
It was contended for the appellant-Union oflndia that the approach of
G the High Court was not correct and also not permissible under Section 386
Cr.P.C.
Answering the question in the negative and disposing of the appeals,
the Court -
H 818
STATE OF U.P. v. ABHAI RAJ SINGH 819
HELD: 1.1. The Registry of the High Court should have placed the A
matter before the appropriate Bench for further directions to explore the
possibility of reconstructing the records, to effectively dispose of the appeals.
[821-B-D]
1.2. Section 386 empowers the Appellate Court to order that the case
be committed for trial and this power is not circumscribed to cases exclusively B
triable by the Court of Sessions. It has been the consistent view taken by
several High Courts that when records are destroyed by fire or on account
of natural or unnatural calamities, reconstruction should be ordered.
[824-D-F]
State of UP. v. Shankar and Anr., AIR (1962) SC 1154, relied on.
c
Re Sevugaperumal and Ors., AIR (1943) Madras 391, referred to.
-( Queen Empress v. Khimat Singh, (1889) A.W.N. 55, referred to.
1.3. The High Court did not keep the relevant aspects and considerations D
in view and came to the abrupt conclusion that re-construction was not
possible merely because there was no response from the Sessions Judge. It is
not clear as to why the High Court did not require the Sessions Court to
furnish the information about re-construction of records; and/or itself take
initiative by issuing pQsitive directions as to the manner, method and nature E
of attempts, efforts and exercise to be undertaken to effectively achieve the
purpose in the best interests of justice and to avoid ultimately any miscarriage
of justice resulting from any lapse, inaction or inappropriate or perfunctory
action, particularly when no action was taken by the High Court to pass
necessary orders for about a decade when it received information about
destruction of record. The course adopted by the High Court, if approved, F
would encourage dubious persons and detractors of justice by allowing
undeserved premium to violators of law by acting hand in glove with those
anti social elements coming to hold sway, behind the screen, in the ordinary
and normal course of justice. Hence order of the High Court is set aside and
the matter remitted back with directions for fresh consideration and disposal G
on merits. (824-G-H; 825-A-E]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
1243-1244 of 1997.
From the Judgment and Order dated 16.8.95 and 25.2.94 of the Allahabad H
820 SUPREME COURT REPORTS [2004] 2 S.C.R.
A High Court in Cr!. A. Nos. 2. 1962 and 1970 of 1979.
C.D. Singh and Vijay Pratap Singh for J.K. Bhatia, for the Appellant.
Manoj Saxena for Pravir Choudhary for the Respondents.
B The Judgment of the Court was delivered by
ARIJIT PASA Y AT, J. In these appeals the question of seminal
importance which arises is whether in exercise of power under Section 386
of the Code of Criminal Procedure, 1973 (in short 'the Code'), the Appellate
Court would be justified in directing acquittal, where the records of the Trial
C Court are not placed before it on some ground or the other. The Allahabad
High Court by the impugned judgment directed acquittal of the accused
persons (present respondents) who were appellants before it.
Background facts need be noticed are essentially as follows:
D Accused persons faced trial for alleged commission of offences
punishable under Section 302 read with Section 34 of the Indian Penal Code,
1860 (in short the 'IPC'). According to prosecution, Shakuntla Devi and
Munni Devi were sleeping on the roof of the second storey of their house. .
Kanti Devi was sleeping on the open roof in front of th~ southern verandah
on the first floor of the house. The main door of the house on the east was
E closed. There were no other persons in the house because Nathoo Singh and
Brij Pal Singh were both in jail being accused of the murder of Jogendra
Singh. It is said that these accused belonged to the party of Dafedar Singh
who had secured his bail in the case of Gajju Singh's murder, before the
present incident in question. The allegation was that the three accused and
p the deceased accused Jagannath Singh scaled over the uppermost roof of
Shc:ikuntla Devi's house from its south-western side and reached the place
where only Munni Devi and her step-mother were sleeping on separate beds
near each other. Munni Devi was, in the process, a.wakened. On hearing
sounds, she flashed a torch, in the light of which she saw and recognised all
the four accused. She also noticed that Om Pal Singh had a knife about one
G foot long, while the other three held guns. Abhai Raj Singh immediately fired
at the sleeping Shakuntla Devi. Munni Devi raised alarm. Undeterred, Ved
Pal Singh and Jagannath Singh also fired shots at Shakuntla Devi, and Om
Pal Singh repeatedly stabbed her with the knife. On hearing gun shot sounds
villagers arrived and knocked at the main door. The miscreants escaped the
H way they had come. Kanti Devi opened the door to let in the villagers who
STATE OF U.P. v. ABHAI RAJ SINGH [PASA YAT, J.] 821
saw Shakuntla Devi dead. Munni Devi dictated the FIR Ex. Ka. I to her A
cousin Om Parkash Singh and handed it to village Chowkidar to lodge it. At
4.30 a.m. in the same night it was registered at Bhamora Police Station. The
police after recording the FIR, started investigation, arrived at the spot,
performed the inquest and sent the dead body for autopsy. After completion
of investigation, charge sheet was placed. Accused persons pleaded innocence
and faced trial. The present respondents were found guilty, convicted and B
sentenced as afore-noted. Before commencement of trial accused Jagannath
died.
Two appeals against the common judgment and order dated 23 :6.1979
were filed by the respondents Om Pal Singh, Abhai RaJ Singh and Ved Pal C
Singh. After admission of the appeal, registry of the High Court sent for the
records from the Trial Court. By letter dated 27 .6.1984 the office-in-charge
(Record room) Judges Court Bareilly informed the High Court that the records
of the case were not available having been destroyed in the fire that broke
out in the night between 18/19.11.1979. Nothing seems to have been done
thereafter, though we feel that the registry should have placed the matter D
before the appropriate Bench for further directions to explore the possibility
of reconstructing the records, to effectively dispose of the appeals. Be that as
it may, by order dated 1.11.1993 i.e more than 9 years after the letter was
received from the lower court, 3 months time was allowed for reconstruction
of the record at the Sessions Judge level. The High Court while disposing of E
the appeal on 25 .2.1994 noted that no communication had been received
about the reconstruction of the record, and inference was therefore drawn
that it was not possible for the Sessions Judge to reconstruct the record. It
was in this background it was held that the mandate of law contained in
Sections 385 and 386 of the Code cannot be complied with and, therefore,
directed that the appellants were not to be arrested in pursuance to the judgment F
and order, and were not required to surrender also and the bail bonds were
to be cancelled.
Learned counsel for the appellant submitted that the approach of the
High Court is not correct and is not legally sustainable. The course adopted
by the High Court is not permitted under Section 386 of the Code. In response, G
learned counsel for the respondents submitted that after long passage of time
when reconstruction of the records is not possible or practicable, the only
course which was available to be adopted has been followed by the High
Court.
H
822 SUPREME COURT REPORTS [2004] 2 S.C.R.
A Sections 385 and 386 of the Code deals with "procedure for hearing
appeals not dismissed summarily" and "powers of the Appellate Court". They
read as follows:
"Sec?!on 385- Procedure for hearing appeals not dismissed summarily:
(1) If the Appellate Court does not dismiss the appeal summarily, it
B shall cause notice of the time and place at which such appeal will be
heard to be given-
(i) to the appellant or his pleader;
(ii) to such officer as the State Government may appoint in this
behalf;
c
(iii) if the appeal is from a judgment of conviction in a case instituted
upon complaint to the complainant;
(iv) ifthe appeal is under Section 377 or Section 378, to the accused,
and shall also furnish such officer, complainant and accused
D with a copy of the grounds of appeal.
•
(2) The Appellate Court shall then send for the record of the case, if
such record is not already available in that Court .and hear the parties:
Provided that if the appeal is only as to the extent for the legality of
the sentence,,.the Court may dispose of the appeal without sending for
E the record.
(3) Where the only ground for appeal from a conviction is the alleged
severity of the sentence, the appellant shall not except with the leave
of the Court urge or be heard in support of any other ground".
F . Section 386- Powers of the Appellate Court- After perusing such I
record and hearing the appellant or his pleader, if he appears, and the
Public Prosecutor, if he appears, and in case of an appeal under
----
Section 377 or Section 378, the accused, ifhe appears, the Appellate
Court may, jf it considers that there is no sufficient ground for
interfering, dismiss the appeal, or may-
G
(a) in an appeal from an order of acquittal, reverse such order and
direct that further inquiry be made, or that the accused be re-
tried or committed for trial, as the case may be, or find him
guilty and pass sentence on him according to law;
H
STATE OF U.P. v. ABHAI RAJ SINGH [PASAYAT, J.) 823
(b) in an appeal from a conviction- A
(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
B
(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;
--- (c) in an appeal for enhancement of sentence- c
(i) reverse the finding and sentence and acquit or discharge
the accused or order him to be re-tried by ·a Court
competent to try the offence, or
(ii) alter the finding maintaining the sentence, or D
(iii) with or without altering the finding, alter the nature or
the extent, or the nature and extent, of the sentence, so as
to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such order;
E
(3) make any amendment or any consequential or incidental order
that may be just or proper:
Provided that the sentence shall not be enhanced unless the
accused has had an opportunity of showing cause against such
enhancement: F
-·- Provided further that the Appellate Court shall not inflict greater
punishment for the offence which in its opinion the accused has
committed, than might have been inflicted for that offence by
the Court passing the order or sentence under appeal".
The powers of the Appellate Court when dealing with an appeal from G
a conviction are delineated in sub-clauses (i), (ii) and (iii) of clause (b) of
Section 386 of the Code. The Appellate Court is empowered by Section 386
- ·to reverse the finding and sentence and acquit. Therefore, the acquittal is
possible when there is reversal of the finding and sentence. The Appellate
H
824 SUPREME COURT REPORTS [2004] 2 S.C.R.
A Court is also empowered to discharge the accused. The third category which
seems to be applicable to the present case is a direction for re-trial by a court
of competent.jurisdiction subordinate to the Appellate Court or committed
for trial. For exercise of the powers in cases of first two categories, obviously
a finding on merits after consideration of the materials on record is imperative.
Where that is not possible because of circumstances like the case at hand i.e.
B destruction of the records, the proper course for the Appellate Court would
be to direct re-trial after reconstruction of the records if in spite of positive
and constructive efforts to reconstruct the records the same was impossible.
If on the other hand, from the copies available with the prosecuting agency
or the defence and/or their respective counsel, reconstruction is possible to be
C made, said course should be adopted and the appeal can be disposed of as it
deserved under course indicated in clauses (i) and (ii). After perusal of the
records and hearing appellant's pleader and public prosecutor under Section
377 or 378, the exercise of power as indicated above can be resorted to. As
was observed in Bani Singh and Ors. v. State of UP., [1996] 4 SCC 720 the
plain language of Section 385 makes it clear that if the Appellate Court does
D not consider the appeal fit for summary dismissal, it must call for the records
and Section 386 mandates that after record is received, the Appellate Court
may dispose of th<:_ appeal after hearing as indicated.
A question would further arise as to what happens when the
E reconstruction is not possible. Section 386 empowers the Appellate Court to
order that the case be committed for trial and this power is not circumscribed
to cases exclusively triable by the Court of Sessions. (See State of UP. v.
Shankar and Anr., AIR (1962) SC 1154).
It has been the consistent view taken by several High Courts that when
F records are destroyed by fire or on account of natural or unnatural calamities,
reconstruction should be ordered. In Queen Empress v. Khimat Singh, (1889)
A.W.N. 55 the view taken was that the provisions of Section 423(1) of the
Criminal Procedure Code, 1898 (in short 'the Old Code') made it obligatory
for the Court to obtain and examine the record at the time of hearing. When
it was not possible to do so, the only available course was a direction for re-
G construction. The said view was reiterated more than six decades back in Re
Sevugaperumal and Ors., AIR (1943) Madras 391. The view has been
reiterated by several High Courts as well, even thereafter.
The High Court did not keep the relevant aspects and considerations in
view and came to the abrupt conclusion that re-construction was not possible
H merely because there was no response from the Sessions Judge. The order for
STATE OF U.P. v. ABHAI RAJ SINGH [PASAYAT, .1.J 825
re-construction was on 1.11.1993 and the judgment of the High Court is in A
Criminal Appeal 1970 of 1979 dated 25 .2.1994. The order was followed in
Criminal Appeal No.1962 of 1979 disposed of on 16.8.1995. It is not clear
as to why the High Court did not require the Sessions Court to furnish the
information about re-construction of records; and/or itself take initiative by
issuing positive directions as to the manner, method and nature of attempts, B
efforts and exercise to be undertaken to effectively achieve the purpose in the
best interests of justice and to avoid ultimately any miscarriage of justice
resulting from any lapse, inaction or inappropriate or perfunctory action, in
this regard; particularly when no action was taken by the High Court to pass
necessary orders for about a decade when it received information about
destruction of record. The course adopted by the High Court, if approved, C
would encourage dubious persons and detractors of justice by allowing
undeserved premium to violators of law by acting hand in glove with those
anti social elements coming to hold sway, behind the screen, in the ordinary
and normal course of justice.
We, therefore, set aside the order of the High Court and remit the D
matter back for fresh consideration. It is to be noted at this juncture that one
of the respondents i.e. Om Pal has died during the pendency of the appeal
before this Court. The High Court shall direct re-construction of the records
within a period of six months from the date of receipt of our judgment from
all available or possible sources with the assistance of the Prosecuting Agency E
as well as the defending parties and their respective counsel. If it is possible
__...
to have the records reconstructed to enable the High Court itself to hear and
dispose of the appea\s in the manner envisaged under Section 386 of the
Code, rehear the appeals and dispose of the same, on its own merits and in
accordance with law. If it finds that re-construction is not practicable but by
order retrial interest of justice could be better served - adopt that course and F
direct retrial - and from that stage law shall take its normal course. If only
reconstruction is not possible to facilitate High Court to hear and dispose of
the appeals and the further course ofretrial and fresh adjudication by Sessions
Court is also rendered impossible due to loss of vitally important basic records
- in that case and situation only, the direction given in the impugned judgment G
shall operate and the matter shall stand closed. The appeals are accordingly
disposed of.
S.K.S. Appeals disposed of.
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