JITENDRA KUMAR RODE versus UNION OF INDIA on 24 April 2023

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SUPREME COURT REPORTS

[2023] 4 S.C.R.

AJITENDRA KUMAR RODE

v.

UNION OF INDIA

(Criminal Appeal No. 1269 of 2023)

BAPRIL 24, 2023

[KRISHNA MURARI AND SANJAY KAROL, JJ.]

Code of Criminal Procedure, 1974: s. 385 – Procedure forhearing appeals not dismissed summarily – Conviction and sentenceof the appellant-Assistant Commercial Manager, Northern RailwayCu/s. 7 of PC Act by the trial court – In appeal before the High Courtthough the record revealed that the entire record of the matter beforetrial court has been lost and is not traceable and the documentssent as reconstructed documents do not constitute the relevant trialcourt record, the High Court upheld the conviction despite goingDinto the merits – Legality of – Held : Accused, in appeal, has a rightto have the record perused by the Appellate Court – Job of thecourt of appeal is not to depend on the lower Court’s judgment touphold the conviction but, based on the record available before itduly called from the trial court and the arguments advanced beforeit, to come to a conclusion thereon – Language of s. 385 shows thatEthe court sitting in appeal governed thereby is required to call forthe records of the case from the concerned court below – It is anobligation, power coupled with a duty, and only after the perusalof such records would an appeal be decided – Non-compliancewith the mandate of the section, in certain cases contingent uponFspecific facts and circumstances of the case, would result in aviolation of Art. 21 – Relevant trial court record has not beenreconstructed, despite the efforts of the courts below – Furthermore,28 years have been passed since the commission of the offence –Ordering a retrial is not in the interest of justice and would notserve any fruitful purpose – Thus, the order of the trial court andGthe High Court set aside – Prevention of Corruption Act, 1988.

Constitution of India : Art. 21 – Protection of rights under –Held: Personal liberty cut down in the absence of fair legalprocedure is an affront to the sanctity of Art. 21 – Fair legalprocedure includes the opportunity for the person filing an appealH

to question the conclusions drawn by the trial court – Same canonly be done when the record is available with the court of appeal.

Judicial directions : Digitization of Records – Issuance ofdirections to the High Courts to ensure that in cases of criminaltrial, and civil suits, the digitization of records to be duly undertakenwith promptitude at all District Courts for smooth judicial process –Issuance of SOP for digital preservation – All High Courts toestablish Judicial Digital Repositories as well as standardized system.

Judicial notice: Digitization of records – In accordance withthe SOP issued, private entities providing specialized service havebeen contracted, and a robust system of responsibility andaccountability to be developed and fostered to ensure the properprotection and regular updation of all records facilitating the smoothfunctioning of the judicial process – Judicial notice taken of thesaid fact.

Allowing the appeal, the Court

HELD: 1.1 If a right of production of documents at the trialstage exists, it is a natural corollary that the High Court, sittingin appeal, must benefit from those documents. In the consideredview of this Court, this is a demand of the said sacrosanctrequirement. [Para 18][520-F]

1.2 In the instant case, despite efforts, documents such asthe witness statements, statements under Section 313 Cr.P.C.are neither available nor have been able to be reconstructed.Therefore, upholding conviction in the absence of such documentscannot be said to be in consonance with due process of law andfairness. [Para 19][520-G]

1.3 Once a violation of a right under Article 21 is established,that is undoubtedly sufficient to set aside a conviction.Nonetheless, it is essential to appreciate what the law of proceduresays in this regard. After all, it cannot be gainsaid that personalliberty cut down in the absence of fair legal procedure is an affrontto the sanctity of Article 21. [Para 20][521-A-B]

1.4 A bare reading of the s. 385 CrPC makes it clear thatwhen appeals are not dismissed summarily, the appellate court AB

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Ashall call for the records of the Court below except in cases wherethe question for consideration is the legality of a sentence. Thereis undoubtedly a compulsion upon the appellate court to call forthe record and then proceed to examine the merits of a casebefore it. That, as is prima facie observable, is not the case beforethis court. [Para 22][522-B-C]

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1.5 Sub-section, 2 of Section 385, requires that the partiesare heard in light of the records received by the Court. Thedocuments undoubtedly need to include the essential documentsnecessary to properly appreciate the appeal on its merits. Eventhe depositions of the witnesses, both prosecution and defence,Chave not been re-constructed and are not available for the Court.[Para 31][526-G; 527-A]

1.6 The Court below, by taking a mutually contradictoryview, proceeded to decide the appeal on merits sentencing theaccused, forgetting that the challenge was also for conviction.DAnd yet did not deal with the merits of the appeal, laying specificchallenge to the judgment of conviction. The whole approach isillegal and erroneous. Firstly, it is observed that the record wasmissing, and then it casts the onus to produce the same on theappellant. [Para 32][527-B]

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1.7 The accused, in appeal, has a right to have the recordperused by the Appellate Court and, therefore, upholding aconviction by merely having noted that the counsel for the accusednot having the record at the time of filing the appeal is “doubtful”and that “no one can believe” the appeal would have been filedFwithout perusing the record, as observed by the High Court isnot correct. The job of the Court of Appeal is not to depend onthe lower Court’s judgment to uphold the conviction but, basedon the record available before it duly called from the trial courtand the arguments advanced before it, to come to a conclusionthereon. [Para 33][527-C-D]G

1.8 In the facts of the instant case, the alleged offence wascommitted on 21.3.1995, and the judgment of the trial court wasdelivered on 7.12.1999. More than 28 years have passed sincethe commission of the offence. The relevant trial court recordhas not been able to be reconstructed, despite the efforts of theH

courts below. Hence, ordering a retrial is not in the interest ofjustice and would not serve any fruitful purpose. The time elapsedmust be taken into consideration by the Court, and it is stressedon that, only after taking due note of and taking steps to abide bythe warning issued by this Court. [Para 34][527-E-G]

State of U.P. v. Abhai Raj Singh and Another (2004) 4SCC 6 : [2004] 2 SCR 818 – referred to.

Sita Ram & Others v. State 1981 Cr.LJ, 65 – referred to.

1.9 Protection of the rights under Article 21 entailsprotection of liberty from any restriction thereupon in the absenceof fair legal procedure. Fair legal procedure includes theopportunity for the person filing an appeal to question theconclusions drawn by the trial court. The same can only be donewhen the record is available with the Court of Appeal. That is themandate of Section 385 CrPC. Therefore, it is not within prudenceto lay down a straightjacket formula, the non-compliance withthe mandate of the section, in certain cases contingent uponspecific facts and circumstances of the case, would result in aviolation of Article 21 of the Constitution of India, which is foundin the instant case. [Para 35][527-G-H; 528-A-B]

1.10 The language of Section 385 shows that the Courtsitting in appeal governed thereby is required to call for therecords of the case from the concerned Court below. The sameis an obligation, power coupled with a duty, and only after theperusal of such records would an appeal be decided. [Para36][528-C]

1.11 The impugned judgment and the conviction passed bySpecial Judge is set aside. [Para 37][528-D]

1.12. As regards, the digitization of records are issued thefollowing directions:

(i) The Registrar General of the High Courts shall ensurethat in all cases of criminal trial, as well as civil suits, thedigitization of records must be duly undertaken with promptitudeat all District Courts, preferably within the time prescribed forfiling an appeal within the laws of procedure.

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A(ii) The concerned District Judge, once the system ofdigitization along with the system of authentication of the digitizedrecords is in place in their judgeship, to ensure that the recordsso digitized are verified as expeditiously as possible.

(iii) A continually updated record of Register of RecordsBdigitized shall be maintained with periodic reports being sent tothe concerned High Courts for suitable directions. [Para 42][529- C-F]

M.H. Hoskot v. State of Maharashtra (1978) 3 SCC544 : [1979] 1 SCR 192; Bani Singh v. State of U.P.C(1996) 4 SCC 720 : [1996] 3 Suppl. SCR 247; ShyamDeo Pandey and Others v. State of Bihar (1971) 1 SCC855 : [1971] Suppl. SCR 133; Biswanath Ghosh v. Stateof W.B. (1987) 2 SCC 55 : [1987] 2 SCR 305;Dhananjay Rai alias Guddu Rai v. State of Bihar 2022SCC Online 880; V. K. Verma v. Central Bureau ofDInvestigation (2014) 3 SCC 485 : [2014] 1 SCR 1063;Ramesh Kaushik v. State of Delhi 2022 SCC OnlineDel 4185; Raghuvir Sahai and Others v. State of U.P.Criminal Appeal No.786 of 1979; Avdesh Rai andOthers v. State of U.P. Criminal Appeal No. 346 of 1984;ETej Pal Singh and Others v. State of U.P. 2015 SCCOnline All 6581; Manu Sharma v. State (NCT of Delhi)(2010) 6 SCC 1 : [2010] 4 SCR 103; Queen Empress v.Khimat Singh 1889 A.W.N. 55; King – Emperor v. DahuRaut AIR 1935 PC 89; Khalil Ahmad v. State of U.P.1986 SCC OnLine All 211; Vir Pal v. State 1999 SCCFOnLine All 1348; Hira Lal v. State of U.P. 1999 SCCOnLine All 1392; Bhunda and Ors. V. State of U.P.2001 SCC OnLine All 864 – referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1269 of 2023.

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From the Judgment and Order dated 23.11.2022 of the High Courtof Judicature at Allahabad, Lucknow Bench in CRLA No. 625 of 1999.

Sandeep Sudhakar Deshmukh, Nishant Sharma, Tushar D.Bhelkar, Advs. for the Appellant.

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K. M. Natraj, ASG, Ms. Ranjana Narayan, Shailesh Madiyal,Arvind Kumar Sharma, Advs. for the Respondent.

The Judgment of the Court was delivered by SANJAY KAROL, J.

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1. Leave granted.

2. The questions which arise for our consideration are; One,whether, in the absence of the records of the Court of Trial, the appellateCourt could have upheld the conviction and enhanced the quantum offine? And Two, whether, given the language employed under Section385 of the Code of Criminal Procedure, 1973, the present situationconstitutes a violation of the accused’s fundamental rights under Article21 of the Constitution of India?

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3. The captioned appeal arises out of the final judgment in CriminalAppeal No. 625 of 1999 dated 23.11.2022 passed by the High Court ofJudicature at Allahabad at Lucknow by which the Appellant’s convictionby the Special Judge, (Prevention of Corruption Act, 1988) Lucknow inCase No. 7 of 1996 was upheld.

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4. To facilitate effective adjudication of the present lis, it isessential to appreciate the judgments rendered by the learned courtsbelow.

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5. The Trial Court, in its judgment dated 04.12.1999, convictedthe Appellant herein, under Sections 7, 13(1) and 13(2) of the Preventionof Corruption Act, 1988 (hereafter, PC Act for short). After analysingthe evidence on record, the Trial Court concluded as under:

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SUPREME COURT REPORTS

A“The prosecution has been successful in proving that accusedJ.K Rode being working at the post of a Public Servant as AssistantCommercial Manager, Northern Railway, Lucknow made ademand of Rupees Five Hundred from Chief Ticket Inspector ShriJai Prakash Narayan Upadhyay on 03.05.95 to dispose of thecharge sheet issued against him and he was caught redhandedBreceivingthebribeon03.05.95andhe receivedRs.500(Rupeesfivehundred)from said J.P.N Upadhya being posted as a publicservant misusing his post as public servant for his gain in corruptand illegal manner. Thus, the offence under section 7, 13(1) and13(2) of the PC Act 1988 is proved against the accused and he isCliable to be punished for these charges. Accused is on bail and hisbail bonds are discharged. Accused should be taken into custodyimmediately.”

6. Having so recorded, the Trial Court sentenced the AppellantDto rigorous imprisonment of one year and rupees five hundred by way offine (in default thereof, further imprisonment of six months) under Section7 of the PC Act and rigorous imprisonment of two years and rupees fivehundred by way of fine (in default thereof, further imprisonment of sixmonths) under Section 13(2) of the PC Act.

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7. Assailing the judgment of conviction and sentence, the HighCourt admitted the petitioner’s appeal on 07.12.1999. A perusal of theOrder dated 04.03.2016 reveals that despite repeated summoning ofrecords of the trial, no reply was received from the Court concernedFand as a result, the District Judge was asked to furnish an explanationand, in any event, take steps for reconstruction of the record.

7.1 The record further reveals that “the entire record has beenlost and is not traceable” and the documents sent as “reconstructeddocuments” do not constitute the relevant trial court record. They wereGfound to be not to be in accordance with Rules nor endorsed by theCentral Bureau of Investigation.

8. The High Court, vide the impugned judgment dated 23.11.2022,upheld the conviction despite having noted on an earlier occasion thatthe reconstruction of records was not in accordance with rules and the H

admission of non-availability of material on record, for which the Appellantherein was in no manner responsible. Significantly, despite arguments,the Court did not discuss the merits of conviction.

9. However, the conviction was upheld and taking note of thedecision of this Court in V.K. Verma v. Central Bureau ofInvestigation[1], the sentence was reduced to time already undergoneand the fine enhanced to Rupees Twenty-Five Thousand.

ThePresentAppeal

10. Being aggrieved by the Order of conviction being upheld, theAppellant has preferred the present appeal.

It is apparent on the face of the record that the record couldnever be reconstructed in its entirety, especially the relevant ones by theconcerned District Court. The Court, nonetheless, found sufficiency inthe partly reconstructed record, which included only a few documents,such as the FIR and upheld the conviction on merits.

11. The learned counsel for the Appellant states that the law issettled on the issue, and in the absence of such records, a convictioncannot be stated to be on firm grounds and is liable to be set aside. Thelearned counsel places reliance on Shyam Deo Pandey and Othersv. State of Bihar[2], State of U.P. v. Abhai Raj Singh and Another[3].He further placed reliance on High Court decisions, namely RameshKaushik v. State of Delhi[4]of the Delhi High Court; Raghuvir Sahaiand Others v. State of U.P.[5], Avdesh Rai and Others v. State ofU.P.[6]and Tej Pal Singh and Others v. State of U.P.[7]of the AllahabadHigh Court.

ConsiderationbythisCourt

12. A conviction of any nature permanently marks a person’scharacter. It would be, in the specific circumstances of this case,unjustified. This is not to say that five hundred rupees as far back as1995 was a small or insignificant amount; however, when the possibility 1 (2014) 3 SCC 485, Paragraphs 8 – 13.

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Aof appeal is extinguished due to the absence of essential material, theperusal and consideration of which is required to take stock of the matterand then uphold or reverse, as the case may be, then the benefit of thedoubt has to be extended to the accused when he is in no mannerresponsible for the same.B13. We must consider whether the non-availability of trial courtrecords before the High Court and upholding conviction, despite theabsence thereof, infringes the right to life and liberty of the accusedenshrined under Article 21 of the Constitution of India.

14. It is well settled that following “procedure established by law”Cin a criminal prosecution is a sacrosanct requirement.

15. In M.H. Hoskot v. State of Maharashtra[8](three-JudgeBench), Krishna Iyer J. writing for the Court observed that:

“11. In short, a first appeal from the Sessions Court to the HighCourt, as provided in the Criminal Procedure Code, manifestsDthis value upheld in Article 21.”

16. It was further observed that every step that makes the right ofappeal fruitful is obligatory, and every action or inaction which stultifiesit is unfair and, ergo, unconstitutional.

17. In Manu Sharma v. State (NCT of Delhi)[9](two-JudgeEBench), this Court has also noted that the due process of law shall deemto include fairness in trial. The Court gives a right to the accused toreceive all documents and statements and move applications for theproduction of records relating to the case.

18. If a right of production of documents at the trial stage exists,Fit is a natural corollary that the High Court, sitting in appeal, must benefitfrom those documents. In the considered view of this Court, this is ademand of the abovementioned sacrosanct requirement.

19. As we have noted earlier, in the present case, despite efforts,documents such as the witness statements, statements under SectionG313 Cr.P.C. are neither available nor have been able to be reconstructed.Therefore, upholding conviction in the absence of such documents cannotbe said to be in consonance with due process of law and fairness.

8 (1978) 3 SCC 544H9 (2010) 6 SCC 1

20. Once a violation of a right under Article 21 is established, thatis undoubtedly sufficient to set aside a conviction. Nonetheless, it isessential to appreciate what the law of procedure says in this regard.After all, it cannot be gainsaid that personal liberty cut down in the absenceof fair legal procedure is an affront to the sanctity of Article 21. To thiseffect, the bench in M.H Hoskot (supra) said:

“24. We may follow up the import of Maneka Gandhi andcrystallise the conclusion. Maneka Gandhi case has laid downthat personal liberty cannot be cut out or cut down without fairlegal procedure. Enough has been set out to establish that a prisoner,deprived of his freedom by court sentence but entitled to appealagainst such verdict, can claim, as part of his protection underArticle 21 and as implied in his statutory right to appeal, thenecessary concomitant of right to counsel to prepare and arguehis appeal.”

21. The instant case is governed by Section 385 of the Code ofCriminal Procedure, 1973, which is extracted for ease of reference:

“385. Procedure for hearing appeals not dismissedsummarily.—(1) If the Appellate Court does not dismiss the appealsummarily, it shall cause notice of the time and place at whichsuch appeal will be heard to be given—

(i) to the Appellant or his pleader;

(ii) to such officer as the State Government may appoint onthis behalf;

(iii) if the appeal is from a judgment of conviction in a caseinstituted upon complaint to the complainant;

(iv) if the appeal is under section 377 or section 378, to theaccused, and shall also furnish such officer, complainantand accused with a copy of the grounds of appeal.

(2) TheAppellateCourtshallthen send for therecordofthecase,ifsuchrecordisnot alreadyavailableinthatCourt,andhearthe parties:Providedthatiftheappealisonlyas totheextentorthelegality of the sentence, theCourt may disposeofthe appeal without sendingfortherecord.

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A(3) Where the only ground for appeal from a conviction is thealleged severity of the sentence, the Appellant shall not, exceptwith the leave of the Court, urge or be heard in support of anyother ground.”

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22. A bare reading of the provision makes it clear that when appealsare not dismissed summarily, the Appellate Court shall call for the recordsof the Court below except in cases where the question for considerationis the legality of a sentence. There is undoubtedly a compulsion uponthe Appellate Court to call for the record and then proceed to examineCthe merits of a case before it. That, as is prima facie observable, is notthe case before us.

23. One of the earlier cases on this issue is the judgment of theCalcutta High Court in Queen Empress v. Khimat Singh[10], whereinthe District Judge failed to trace or discover the lost records. The CourtDobserved that this loss of records has lost the Appellant, a right he isentitled to, that of hearing by a higher court. In such situations, no otherrecourse remains than to order trial de-novo. The judgment in KhimatSingh (supra) has been followed by this Court in Abhai Raj Singh(supra).

E24. The abovementioned requirement is found in the Old Code(Criminal Procedure Code, 1898, now repealed), under Section 423 aswell. Section 423 of the 1898 Code, corresponds to Section 385 of theCode of Criminal Procedure, 1898.

25. The Privy Council in King – Emperor v. Dahu Raut[11], statedFthat where a conviction is appealed against, once summary dismissalfails, the provision of Section 423 as to sending for the record are clearly“peremptory”, and there can be no room for revision at that stage. Thishas been reiterated by this Court in In Shyam Deo Pandey (supra),observing that, calling for the record of the Court below is an obligation,in the following terms:G“18. Coming to Section 423, which has already been quoted above,it deals with powers of the appellate Court in disposing of theappeal on merits. Itis obligatoryfortheappellateCourttosend 10 1889 A.W.N. 55H11 AIR 1935 PC 89

fortherecordof the case, if it is not already before the Court.This requirement is necessary to be complied with to enable theCourttoadjudicateuponthecorrectnessor otherwise of the orderor judgment appealed against not only with reference to thejudgment but also with referencetotherecordswhichwillbethebasison whichthejudgmentisfounded.Thecorrectnessorotherwise of the findings recorded in the judgment, on the basis ofthe attack made against the same, cannot be adjudicated uponwithout reference to the evidence, oral and documentary and othermaterials relevant for the purpose. The reference to “such record”in “afterperusing such record” is to the record of the case sentforbytheappellateCourt.”

26. This Court in Biswanath Ghosh v. State of W.B.[12](two-JudgeBench) observed that an Appellate Court allowing a conviction withouthaving the records before it and the evidence adduced by the prosecutionis a flagrant miscarriage of justice.

27. This Court in Abhai Raj Singh (supra) (two-Judge Bench)while dealing with a conviction by the Trial Court under Section 302 ofthe IPC, 1860, while remanding the matter for consideration afresh bythe High Court observed:

“8. It has been the consistent view taken by several High Courtsthat when records are destroyed by fire or on account of naturalor unnatural calamities, reconstruction should be ordered. InQueen Empress v. Khimat Singh [1889 AWN 55] the view takenwas that the provisions of Section 423(1) of the Criminal ProcedureCode, 1898 (in short “the old Code”) made it obligatory for theCourt to obtain and examine the record at the time of hearing.When it was not possible to do so, the only available course was adirection for reconstruction. The said view was reiterated morethan six decades back in Sevugaperumal, Re [AIR 1943 Mad391 (2) : 44 Cri LJ 611] . The view has been reiterated by severalHigh Courts as well, even thereafter.

9. The High Court did not keep the relevant aspects andconsiderations in view and came to the abrupt conclusion thatreconstruction was not possible merely because there was no 12 (1987) 2 SCC 55

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response from the Sessions Judge. The order for reconstructionwas on 1-11-1993 and the judgment of the High Court is in CriminalAppeal No. 1970 of 1979 dated 25-2-1994. The order was followedin Criminal Appeal No. 1962 of 1979 disposed of on 16-8-1995. Itis not clear as to whytheHighCourtdidnotrequire the SessionsCourt to furnish the information about reconstruction ofrecords;and/oritselftakeinitiativebyissuing positivedirectionsastothemanner,methodandnatureofattempts,effortsandexercisetobe undertaken to effectively achieve the purpose in the bestinterests of justice and to avoid ultimately any miscarriageofjusticeresultingfromanylapse, inactionorinappropriateorperfunctoryaction, in this regard; particularly when no action was taken bythe High Court to pass necessary orders for about a decadewhenitreceivedinformationaboutdestruction of record. The courseadopted by the High Court,ifapproved,wouldencouragedubiouspersons anddetractorsofjusticebyallowingundeservedpremiumtoviolatorsoflawbyactinghand in glovewiththoseanti-socialelementscomingtoholdsway,behindthe screen,in the ordinaryand normal courseofjustice.

10. We, therefore, set aside the order of the High Court and remitthe matter back for fresh consideration. It is to be noted at thisjuncture that one of the respondents i.e. Om Pal has died duringthe pendency of the appeal before this Court. The High Courtshall direct reconstruction of the records within a period of sixmonths from the date of receipt of our judgment from all availableor possible sources with the assistance of the prosecuting agencyas well as the defending parties and their respective counsel. If itis possible to have the records reconstructed to enable the HighCourt itself to hear and dispose of the appeals in the mannerenvisaged under Section 386 of the Code, rehear the appeals anddispose of the same, on their own merits and in accordance withlaw. If it finds that reconstruction is not practicable butbyorderingretrialinterestofjusticecouldbe betterserved—adoptthatcourseanddirectretrial— andfromthatstagelawshalltakeitsnormalcourse. If only reconstruction is not possible to facilitate the HighCourt to hear and dispose of the appeals and the further course ofretrial and fresh adjudication by the Sessions Court is also renderedimpossible due to loss of vitally important basic records — in thatcase and situationonly,thedirectiongivenintheimpugned judgment shalloperateandthemattershallstandclosed.The appeals areaccordingly disposed of.”

28. Recently, this Court in Dhananjay Rai alias Guddu Rai v.State of Bihar[13 ](two-Judges) took note of a Judgment rendered inBani Singh v. State of U.P.[14], as under :

“14. We have carefully considered the view expressed in thesaid two decisions of this Court and, we may state that the viewtaken in Shyam Deo case [(1971) 1 SCC 855 : 1971 SCC (Cri)353 : AIR 1971 SC 1606] appears to be sound except for a minorclarification which we consider necessary to mention. The plainlanguage of Section 385 makes it clear that if the appellate Courtdoes not consider the appeal fit for summary dismissal, it ‘must’call for the record and Section 386 mandates that after the recordis received, the appellate Court may dispose of the appeal afterhearing the accused or his counsel. Therefore, the plain languageof Sections 385-386 does not contemplate dismissal of the appealfor non-prosecution simpliciter. Onthecontrary,theCodeenvisages disposal of the appeal on merits after perusal andscrutiny of the record. The law clearly expects the appellate Courtto dispose of the appeal on merits, not merely by perusing thereasoning of thetrialcourtinthejudgment,but by cross- checkingthe reasoning with the evidence on record with a view to satisfyingitself that the reasoning and findingsrecordedbythetrialcourtareconsistent withthematerialonrecord.”

29. In a case with similar circumstance, we notice that the AllahabadHigh Court in Sita Ram & Others v. State[15]has held that when theentire record was lost or destroyed and the reconstruction of the recordwas not possible, the Appellate Court shall order retrial provided thetime lag date of incident and the date of hearing of appeal is short. If thesame is long and/or the FIR, statement, of witnesses under Section 161and other relevant papers are not available, the Appellate Court shouldnot order retrial.

13 2022 SCC Online 88014 (1996) 4 SCC 72015 1981 Cr.LJ, 65

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A30. In numerous judgments rendered by various High Courts, asimilar view to the effect that a conviction cannot be upheld in the absenceof the records of the Court below has been expressed. Taking note ofSita Ram (supra), the time elapsed between the occurrence of theoffence and the appeal being finally decided, these courts have heldthat in the absence of essential documents such as the FIR or witnessBstatements, a retrial too cannot be said to be serving the ends of justice.[Khalil Ahmad v. State of U.P.[16]; Vir Pal v. State[17]; Hira Lal v.State of U.P.[18]and Bhunda and Ors. V. State of U.P.[19]]

31. In the present case, the impugned judgment of the High Courtrecords the statement of the CBI that the records have “got lost”. TheC“reconstructed” record consists of the following:

i.FIR of RC 18(A)/95-LKO; ii.Complaint dated 03.05.1995 of Sri J.P.N. Upadhyay, CIT,Varanasi (2 pages); Diii.Photocopy of S.F.-II dated 24.03.1995 (one page);

iv.Pretrap memorandum dated 3.5.95 (4 pages);

v.Recovery memo dated 3.5.1995 (5 pages);

vi.Search list dated 3.5.95 (5 pages);

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vii.One file containing charge-sheet (SF-II) of Sri JPNUpadhyay and Notesheet. (Pages 1 to 6 & NotesheetPP-2);

viii.Search list dated 4.5.95 (1 sheet); Fix.Site plan dated 3.5.95 (1 sheet);

x.Misc. Papers containing Draft charge-sheet etc. (7 sheets);

xi.Sanction order dated 28.12.95.

Sub-section, 2 of Section 385, requires that the parties are heardin light of the records received by the Court. The documents undoubtedlyGneed to include the essential documents necessary to properly appreciatethe appeal on its merits. Even the depositions of the witnesses, both 16 1986 SCC OnLine All 21117 1999 SCC OnLine All 134818 1999 SCC OnLine All 1392H19 2001 SCC OnLine All 864

prosecution and defence, have not been re-constructed and are notavailable for the Court. This position of disposal of an appeal on meritsbeing only after perusal of record, has been held by a three-JudgeBench in Bani Singh (supra).

32. The Court below, in our considered view, by taking a mutuallycontradictory view, proceeded to decide the appeal on merits sentencingthe accused, forgetting that the challenge was also for conviction. Andyet did not deal with the merits of the appeal, laying specific challenge tothe judgment of conviction. The whole approach is illegal and erroneous.Firstly, it is observed that the record was missing, and then it casts theonus to produce the same on the Appellant.

33. In light of the abovementioned discussion, the Accused, inappeal, has a right to have the record perused by the Appellate Courtand, therefore, upholding a conviction by merely having noted that thecounsel for the accused not having the record at the time of filing theappeal is “doubtful” and that “no one can believe” the appeal wouldhave been filed without perusing the record, as observed by the HighCourt is not correct. The job of the Court of Appeal is not to depend onthe lower Court’s judgment to uphold the conviction but, based on therecord available before it duly called from the Trial Court and thearguments advanced before it, to come to a conclusion thereon.

34. In the facts at hand, the alleged offence in question wascommitted on 21.3.1995, and the judgment of the Trial Court was deliveredon 7.12.1999. More than 28 years have passed since the commission ofthe offence. As already indicated, the relevant Trial Court record hasnot been able to be reconstructed, despite the efforts of the courts below.Hence, in our considered view, as discussed above, ordering a retrial isnot in the interest of justice and will not serve any fruitful purpose. Thetime elapsed must be taken into consideration by the Court, and we maystress on that, only after taking due note of and taking steps to abide bythe warning issued by this Court in Abhai Raj Singh (supra), as wascorrectly done in Sita Ram (supra).

Conclusions

35. Protection of the rights under Article 21 entails protection ofliberty from any restriction thereupon in the absence of fair legalprocedure. Fair legal procedure includes the opportunity for the personfiling an appeal to question the conclusions drawn by the trial court. The A

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Asame can only be done when the record is available with the Court ofAppeal. That is the mandate of Section 385 of the CrPC. Therefore, inthe considered view of this Court, it is not within prudence to lay down astraightjacket formula, we hold that non-compliance with the mandateof the section, in certain cases contingent upon specific facts andcircumstances of the case, would result in a violation of Article 21 of theBConstitution of India, which we find it to be so in the instant case.

36. The language of Section 385 shows that the Court sitting inappeal governed thereby is required to call for the records of the casefrom the concerned Court below. The same is an obligation, power coupledwith a duty, and only after the perusal of such records would an appealCbe decided.

37. In the view of the aforesaid, the appeal is allowed. The impugnedjudgment and the conviction dated 07.12.1999 passed by Special Judge(Prevention of Corruption Act, 1988), Lucknow, in Case No.7/1996 isset aside, subject thereof, is set aside.D

38. The impugned judgment had directed the accused to pay, byway of an enhanced fine, Rupees 25,000. Given the above, the fine, beit of whatever amount, if deposited, is liable to be returned to the Appellant.

39. Before parting with the present leave petition another importantEissue must be dealt with, i.e. the digitization of records. Technology has,in the present time become increasingly enmeshed with the systems ofdispute resolution and adjudication with the trends pointing leading to allthe more interplay, both supplementary and complimentary betweentechnology and law.F40.On 24.9.2021, the learned E-committee of the Supreme Courtof India issued an SOP for digital preservation. Step by stepimplementation of the digitization process involves eighteen steps therein.Primarily, it requires all High Courts to establish Judicial DigitalRepositories (JDR) as well as the standardized system therefor; Adigitisation cell at each of the High Courts is to be established to monitorGthe progress on day to day basis; It is the work of the cell to managecontracts with vendors for specialized services; an online data trackingsystem to keep track of the data transferred to the High Courts and tofacilitate the receipts for each set of transferred records to the DistrictCourts as well; District Courts to have back-ups of all data transferred H

to the High Court on a monthly basis while maintaining an independentrecord thereof.

41. It cannot be doubted that had there been properly preservedrecords of the Trial Court, the issue in the present appeal as to whetherthe High Court could uphold a conviction having not perused the completeTrial Court record, would not have arisen. Judicial notice can be taken ofthe fact that, in accordance with the SOP issued, private entities providingspecialized service have been contracted, and therefore considering theimportance and essentiality of such record, a robust system ofresponsibility and accountability must be developed and fostered in orderto ensure the proper protection and regular updation of all recordsfacilitating the smooth functioning of the judicial process.

42. Therefore, this Court finds it fit to issue the following directions:

1. The Registrar General of the High Courts shall ensure that inall cases of criminal trial, as well as civil suits, the digitization ofrecords must be duly undertaken with promptitude at all DistrictCourts, preferably within the time prescribed for filing an appealwithin the laws of procedure.

2. The concerned District Judge, once the system of digitizationalong with the system of authentication of the digitized records isin place in their judgeship, to ensure that the records so digitizedare verified as expeditiously as possible.

3. A continually updated record of Register of Records digitizedshall be maintained with periodic reports being sent to theconcerned High Courts for suitable directions.

4. Interlocutory application(s), if any, shall stand disposed of.

Nidhi Jain(Assisted by : Rakhi, LCRA)

Appeal allowed.

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DE

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H