NASIB SINGH versus THE STATE OF PUNJAB & ANR. on 8 October 2021

[2021] 13 S.C.R. 566

SUPREME COURT REPORTS

[2021] 13 S.C.R.

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NASIB SINGH

v.

THE STATE OF PUNJAB & ANR.

(Criminal Appeal Nos. 1051-1054 of 2021)

BOCTOBER 08, 2021

[DR. DHANANJAYA Y CHANDRACHUD, VIKRAM NATHAND B.V. NAGARATHNA, JJ.]

Code of Criminal Procedure, 1973: ss. 386, 223 – Power ofappellate court to direct retrial – Scope of – Held: Appellate CourtCmay direct a retrial only in ‘exceptional’ circumstances to avert amiscarriage of justice – Mere lapses in the investigation are notsufficient to warrant a direction for re-trial – Only if the lapses areso grave so as to prejudice the rights of the parties, a retrial can bedirected – On facts, two FIR’s relating to the offences in the sameDtransaction, one arising out of the alleged gang rape of theprosecutrix; and other arising out of the suicide of the prosecutrix– Order by the High Court remitting the judgments of convictionand acquittal of the Additional Sessions Judge in the trials arisingout of the two FIRs and directing that trials be clubbed and triedtogether as provided u/s. 223, is a travesty of justice – With a lapseEof over 7 years since the date of the incident, a retrial would notadvance the cause of justice but would result in a serious miscarriageof justice – Even if it is conceded that the alleged offences committedin the two FIRs were committed in the course of the same transaction,within the meaning of the phrase in s. 223(d), it does not warrantFthe exercise of discretion to direct a retrial followed by a joint trial– It was imperative for the accused to prove that the separate trialscaused a miscarriage of justice – No explanation rendered on theaspect of a miscarriage of justice – Furthermore, the holding ofseparate trials was not contrary to law and that there was no resultantfailure of justice demonstrated to the satisfaction of the High CourtG– Thus, the order by the High Court set aside.

Allowing the appeals, the Court

HELD: 1.1 Section 386 CrPC defines the powers of theappellate court. Under clause (a), the appellate court isH

empowered inter alia in an appeal from an order of acquittal: toreverse such order and direct that a further inquiry be made; orthat the accused be re-tried or committed for retrial; or find himguilty and pass sentence on him according to law. The power ofthe appellate court to order a retrial is also recognized in clause(b)(i) in the context of an appeal from a conviction and in clause(c)(i) in an appeal for enhancement of sentence. [Para 20][584-G;586-A-C]

1.2 A retrial would not be ordered unless the appellate courtis satisfied that the court trying the proceeding had no jurisdiction;the trial was vitiated by serious illegalities and irregularities oron account of a misconception of the nature of the proceedingsas a result of which no real trial was conducted; or the prosecutoror an accused was for reasons beyond their control preventedfrom leading or tendering evidence material to the charge andthat in the interest of justice, the appellate court considers itappropriate to order a retrial. An order of retrial wipes out fromthe record the earlier proceeding and exposes the presentaccused to another trial. It is for that reason that a retrial cannotbe ordered merely on the ground that the prosecution did notproduce proper evidence and did not know how prove their case.[Para 22][587-E-H]

1.3 The principles emerging on retrial can be formulatedas under:

(i) The appellate court may direct a retrial only in‘exceptional’ circumstances to avert a miscarriage of justice;

(ii) Mere lapses in the investigation are not sufficient towarrant a direction for re- trial. Only if the lapses are so grave soas to prejudice the rights of the parties, can a retrial be directed;

(iii) A determination of whether a ‘shoddy’ investigation/trial has prejudiced the party, must be based on the facts of eachcase pursuant to a thorough reading of the evidence;

(iv) It is not sufficient if the accused/ prosecution makes afacial argument that there has been a miscarriage of justicewarranting a retrial. It is incumbent on the appellate courtdirecting a retrial to provide a reasoned order on the nature of AB

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[2021] 13 S.C.R.

Athe miscarriage of justice caused with reference to the evidenceand investigatory process;

(v) If a matter is directed for re-trial, the evidence and recordof the previous trial is completely wiped out; and

(vi) The Court could order a retrial on the ground ofBmiscarriage of justice when the trial court has proceeded withthe trial in the absence of jurisdiction; the trial has been vitiatedby an illegality or irregularity based on a misconception of thenature of the proceedings; and the prosecutor has been disabledor prevented from adducing evidence as regards the nature ofCthe charge, resulting in the trial being rendered a farce, sham orcharade. [Para 28][594-A-H]

1.4 The principles formulated on joint trial and separatetrials are that section 218 provides that separate trials shall beconducted for distinct offences alleged to be committed by aDperson. Sections 219 - 221 provide exceptions to this generalrule. If a person falls under these exceptions, then a joint trial forthe offences which a person is charged with may be conducted.Similarly, under Section 223, a joint trial may be held for personscharged with different offences if any of the clauses in theprovision are separately or on a combination satisfied. WhileEapplying the principles enunciated in Sections 218 - 223 onconducting joint and separate trials, the trial court should apply atwo-pronged test, namely, whether conducting a joint/separatetrial will prejudice the defence of the accused; and/or whetherconducting a joint/separate trial would cause judicial delay. TheFpossibility of conducting a joint trial will have to be determinedat the beginning of the trial and not after the trial based on theresult of the trial. The appellate court may determine the validityof the argument that there ought to have been a separate/jointtrial only based on whether the trial had prejudiced the right ofaccused or the prosecutrix. Since the provisions which engraftGan exception use the phrase ‘may’ with reference to conductinga joint trial, a separate trial is usually not contrary to law even if ajoint trial could be conducted, unless proven to cause amiscarriage of justice. A conviction or acquittal of the accusedcannot be set aside on the mere ground that there was a possibility H

of a joint or a separate trial. To set aside the order of convictionor acquittal, it must be proved that the rights of the parties wereprejudiced because of the joint or separate trial, as the case maybe. [Para 38][603-D-H; 604-A-B]

1.5 As regards, the judgment of the Additional SessionsJudge in FIR 187 of 2012, the allegation against the appellantwas that that he had made a tainted investigation in the rape case(FIR 96) so as to help the accused and had abetted the commissionof suicide by the deceased. The trial judge while acquitting theappellant found that: the appellant’s name is not mentioned inthe suicide note; the original suicide note which was taken intopossession by PW 22 (investigating Officer) had not beentampered with by the appellant and PW 22 had admitted duringhis cross-examination that the preliminary investigationconducted by the appellant had been adopted by him duringfurther investigation; and PW12, PW2 and PW21 had not madeany allegation during the course of their evidence against theappellant but on the contrary had stated that he had conducted aproper investigation. On appreciating the evidence, the trial judgecame to the conclusion that there was an absence of evidence onrecord to demonstrate that the appellant committed any offenceunder Sections 306, 217, and 218 IPC. [Para 39][604-D-H;605-A-B]

1.6 The High Court proceeded to order a retrial holdingthat a separate trial in FIR 96 and FIR 187 has caused prejudiceto both the parties in as much as they were unable to rely on theevidence in the other case. The High Court held that the Courthas the discretion to conduct a joint trial for both the allegedoffences, namely, the gang rape of the prosecutrix and theresultant suicide and its abetment since they are connected inview of Section 223(d) CrPC; the prosecution and the defenceare relying on the facts and evidence of both the cases-FIR 96and 187. But since the trials were separately held, in view ofNathi Lal’s case, the Court was unable to refer to the evidence inthe other case. If the evidence in the trials arising out of bothFIRs is not scanned together by the court to arrive at the finalconclusion, it will lead to a failure of justice; and though theappellant was acquitted in both FIR 96 and FIR 187, taking into A

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Athe consideration the entire situation and ‘the angle of failureof justice, the case must be remanded for retrial. [Para 40][605-B-F]

1.7 The power to order a retrial has been consistently heldto be of an exceptional nature beginning with the formulation ofBthe principles by the Constitution Bench in Ukha Kolhe’s caseand the resultant formulation, more recently, by the two judgeBench in Ajay Kumar Ghoshal’s case. Directing a joint trial is notmandatory but lies within the discretion of the Court under Section223 of the CrPC. Clause (d) of Section 223 permits personsaccused of different offences committed in the course of the sameCtransaction to be charged and tried together. [Para 42][606-E-F]

Ukha Kolhe v. State of Maharashtra (1964) 1 SCR 926– followed.

Ajay Kumar Ghoshal v. State of Bihar (2017) 12 SCCD699 : [2017] 1 SCR 469 – relied on.

1.8 The High Court was conscious of the fact that theappellant was tried together with the other appellants during thetrials in both the FIRs in view of Section 223(a) CrPC. Theappellant was acquitted in the Sessions trial arising out of FIR 96Eon 29 November 2014 and in the trial arising out of FIR 187/2012 on 29 January 2015. Though the High Court noted that “hehad earned a right and it should be slow in disturbing the same”,it yet remanded both the cases back for retrial “to maintainbalance and delivery of justice”. There is merit in the submissionwhich had been submitted both by counsel for the appellant andFfor the State of Punjab that the order of retrial wipes out the entirerecord of evidence. The evidence which has been recorded duringthe separate trials cannot exist for some of the accused and notfor the others. The effect of the decision of the High Court is torelegate the appellant to a fresh trial together with the otherGaccused. The High Court has in fact directed that the trial wouldbe conducted afresh by observing that the accused be chargedtogether for the different offences committed by them.[Para 45][607-F-G; 608-A-D]

1.9 The appellant has set up the plea that ordering a retrialat this stage would be a matter of serious prejudice since crucialH

witnesses who deposed in regard to the manner in which theinvestigation was conducted by the appellant have since died.Apart from the above considerations, the High Court could nothave been oblivious of the seriousness of the alleged offences ofwhich the accused were charged. FIR 96 was registered on 27November 2012 for offences punishable under Section 328, 363A,366 and 376 read with Section 34 of the Penal Code. The appellantwas implicated on 11 January 2013 after the provisions of Sections217, 218 and 120B were added. There was a serious allegation ofa gang rape having been committed on the prosecutrix which isalleged to have ultimately resulted in her suicide on 26 December2012 leading to the registration of FIR 100 under Section 306/34IPC which was transferred to PS Samana and registered as FIR187. The High Court by its impugned judgment remitted theconviction and sentence of the accused and the acquittal of theappellant to the trial court and ordered a retrial. With a lapse ofover 7 years since the date of the incident, a retrial would notadvance the cause of justice but would result in a seriousmiscarriage of justice. The judgment of the High Court is atravesty of justice. [Para 46][608-D-G; 609-A]

1.10 Even if it is conceded that the alleged offencescommitted in FIR 96 and FIR 197 were committed in the courseof the same transaction, within the meaning of the phrase inSection 223(d), in view of the interpretation in CheemalapatiGaneswara Rao’s case, it does not warrant the exercise ofdiscretion to direct a retrial followed by a joint trial. It wasimperative for the accused-respondents to prove that the separatetrials caused a miscarriage of justice. The respondents have notbeen able to demonstrate before the Court that separate trialsled to a miscarriage of justice. No explanation has been renderedon the aspect of a miscarriage of justice. Though the High Courthas in the impugned judgment observed that the separate trialsin FIR 96 and FIR 187 led to a miscarriage of justice, no analysishas been undertaken to explain the finding. Moreover, the HighCourt has only observed that there ‘may’ be a miscarriage ofjustice. Therefore, quite apart from the individual prejudice tothe appellant which has been brought out before the Court, theholding of separate trials was not contrary to law and that there ABC

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Awas no resultant failure of justice demonstrated to the satisfactionof the High Court. [Para 47][609-B-E]

State of Andhra Pradesh v. Cheemalapati GaneswaraRao AIR 1963 SC 1850 : [1964] SCR 297 – relied on.

1.11 The State of Punjab is not in appeal before this CourtBagainst the retrial which has been ordered by the High Court.But as a matter of first principle, it is evident that even the appellanthas been able to establish that a retrial would be a matter of seriousprejudice since vital evidence which has been recorded duringthe course of the trial would be obliterated as a result of theCdeath of the witnesses from the investigating team led by theappellant. That apart, a retrial would not serve the ends ofensuring that justice is done in a heinous crime alleged to havebeen perpetrated on the prosecutrix resulting in her suicide.[Para 48][609-E-F]

D1.12 The impugned judgment and order of the High Courtis set aside. [Para 49][609-G]

Nathi Lal v. State of UP 1988 SC (Criminal) 638; NathiLal v. State of UP (1990) Supp SCC 145; State of AndhraPradesh v. Cheemalapati Ganeswara Rao AIR 1963ESC 1850 : [1964] SCR 297; State of M P v. Bhooraji(2001) 7 SCC 679 : [2001] 2 Suppl. SCR 128; GangulaAshok v. State of A P (2000) 2 SCC 504 : [2000] 1 SCR468; Zahira Habibulla Sheikh v. State of Gujarat (2004)4 SCC 158 : [2004] 3 SCR 1050; Satyajit Banerjee v.State of West Bengal 2005 (1) SCC 115 : [2004] 6 Suppl.FSCR 294; Mohd Hussain v. State (Government of NCTof Delhi) (2012) 9 SCC 408 : [2012] 10 SCR 480; NarSingh v. State of Haryana (2015) 1 SCC 496 : [2014]12 SCR 218; Isaac v. Ronald Cheriyan (2018) 2 SCC278 : [2018] 1 SCR 217; Mary Pappa Jebamani v.GGanesan (2014) 14 SCC 477 : [2013] 11 SCR 1042;R. Dineshkumar v. State (2015) 7 SCC 497 : [2015] 5SCR 605; Chandra Bhal v. The State of UP 1971 (3)SCC 983; Essar Teleholdings Limited v. Central Bureauof Investigation (2015) 10 SCC 562 : [2015] 11 SCR340 – referred to.

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Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 1051-1054 of 2021.

From the Judgment and Order dated 20.12.2019 of the High Courtof Punjab and Haryana at Chandigarh in CRA-S-1485-SB of 2015, CRA-S-1741-SB of 2015, CRA-S-1940-SB of 2015 and CRA-S-1599-SB of2016.

With

Criminal Appeal Nos. 1055-1059 of 2021.

Vipin Gogia, Ms. Christi Jain, Advs. for the Appellant.

Ms. Uttara Babbar, Manan Bansal, D. Bharat Kumar, TadimallaBhaskar Gowtham, Aman Shukla, Hathindra Manda, Dasari MuraleeMohan, Gopal Jha, Dr. Nishesh Sharma, Narender Kumar Verma, Advs.for the Respondents.

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574SUPREME COURT REPORTS

AThe Judgment of the Court was delivered byDR. DHANANJAYA Y CHANDRACHUD, J.

1. These appeals arise from a judgment dated 20 December 2019of a Division Bench of the High Court of Punjab and Haryana in a batchBof nine criminal appeals. The High Court remitted the orders of acquittaland conviction arising out of two separate FIRs for fresh trial and directedthat the proceedings arising out of both the FIRs be clubbed togetherunder Section 223 CrPC and be tried together by one court. The issuethat arises for consideration is whether holding separate trials arising outof two FIRs warrants the direction of the High Court for a de novo trial.C

2. The case of the prosecution is that on 13 November 2012, theprosecutrix along with Shinderpal Kaur went to Gugga Mari near Ghaggarriver for lighting earthen lamps. While they were returning home, a cardriven by accused Gurpreet Singh alias Aman approached them.Balwinder Singh was alleged to be sitting in the rear seat of the vehicle.DGurpreet Singh halted the car near the prosecutrix and Shinderpal Kaurwhereupon Balwinder Singh who was known to her opened the door ofthe vehicle, grabbed her and threw her on the rear seat of the vehicle.The doors and window panes of the vehicle were closed as a result ofwhich the alarms raised by the prosecutrix could not be heard by theEpassers-by. Shinderpal Kaur left the spot. Balwinder Singh is alleged tohave committed sexual assault on the prosecutrix in the car after whichshe was taken to the motor shed of accused Sandeep Singh. SandeepSingh handed over the key to Balwinder Singh after which the prosecutrixis alleged to have been repeatedly raped by Balwinder Singh and GurpreetSingh in the precincts of the motor shed. The prosecutrix is alleged toFhave been forcible administered an intoxicant as a result of which shebecame semi-conscious. At 9.30pm, she was brought in the vehicle andthrown near the Gurudwara of the village. The prosecutrix managed toreach her home and narrated the incident to her mother Surjeet Kaur.

3. On 22 November 2012, the prosecutrix along with her relative,Gsister and mother is alleged to have reached Police Station City Samanafrom where they were directed to Police Station Ghagga.

4. On 27 November 2012, the prosecutrix got her statementrecorded with Sub-Inspector In charge Nasib Singh (the appellant) ofthe Police Post at Badshahpur on the basis of which First InformationH

Report[1 ]96/2012[2] was registered at Police Station Ghagga, Badshahpurunder Sections 363, 366A, 376, 328 and 34 of the Indian Penal Code[3].The FIR named Balwinder Singh, Gurpreet Singh alias Aman and SandeepSingh as the persons who had committed acts of sexual assault on theprosecutrix. It is alleged by the prosecution that though the appellantreceived information from the prosecutrix of the alleged incident of rape,no arrest was made and a proper investigation was not conducted.

5. On 26 December 2012, the prosecutrix committed suicideleaving behind a suicide note naming Balwinder Singh, Gurpeet Singhand Shinderpal Kaur to be responsible for her decision to end her life.Immediately after the death of the prosecutrix, the appellant arrestedaccused Balwinder Singh, Gurpeet Singh and Shinderpal Kaur. On thebasis of a statement made by Harvinder Kaur, a cousin of the prosecutrix,FIR No.100/2012[4] dated 26 December 2012 was registered at PS Ghaggaagainst the appellant (SI Nasib Singh), Balwinder Singh, Gurpreet Singhalias Aman and Shinderpal Kaur for abetting the suicide of the prosecutrix.FIR 100 was cancelled since the suicide was committed within thejurisdictional limits of PS Samana. On 31 December 2012, FIR No.187/2012[5] was registered against Balwinder Singh, Gurpeet Singh andShinderpal Kaur for an offence punishable under Section 306 read withSection 34 of the IPC at PS Samana.

6. A Special Investigating Team[6 ]was constituted by the ADGP(Crime) to enquire into the standard of investigation conducted by theappellant in the gang rape case registered as FIR 96 of 2012. The SITconcluded that the investigation conducted by the appellant in FIR 96of2012 had loopholes. The Superintendent (Crime), Patiala who was amember of the SIT arrested Sandeep Singh on 29 December 2012. Theappellant was dismissed from the Police Department on 27 December2012. On appeal, the dismissal was set aside on 11 April 2014, and theappellant was reinstated to the service.

1 "FIR”

2 "FIR 96"

3 "IPC”

4 "FIR 100"

5 "FIR 187"

6 "SIT”

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1 "FIR”

2 "FIR 96"

3 "IPC”

4 "FIR 100"

5 "FIR 187"

6 "SIT”

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A7. On 15 January 2013,the appellant was implicated in respect ofFIR 96of 2012 concerning the gang rape of the prosecutrix and allegedoffences under Sections 217, 218 and 120B of the IPC were added. Inregard to FIR 187 of 2012 registered for the offence under Section 306/34, the appellant was implicated following the addition of offences underSections 217, 218 and 120-B IPC. Charges were framed in FIR 187 ofB2012 by the Additional Sessions Judge, Patiala on 5 April 2013. Theaccused were charged under Section 306 IPC while the respondent inaddition was charged with Sections 217 and 218 IPC.

8. On 29 November 2014, the Additional Sessions Judge, Patialaconvicted (i) Balwinder Singh; (ii) Gurpreet Singh alias Aman;(ii)CShinderpal Pal Kaur; and (iv) Sandeep Singh in the trial arising out ofFIR 96of 2012 for offences under Sections 376(2)(g), 366, 328 and 120Bof the IPC. A tabular statement of the conviction rendered and sentenceimposed by the Additional Sessions Judge on Balwinder Singh, GurpreetSingh alias Aman, Shinderpal Pal Kaur and Sandeep Singh is reproducedDbelow from the judgment of the Additional Sessions Judge.

Convicts Balwinder Singh and Gurpreet Singh @ Aman E

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Convicts Shinderpal Kaur and Sandeep Singh(PDF Pg 587)

9. The Additional Sessions Judge, Patiala acquitted the appellant-Nasib Singh on the ground that there was nothing on record to provethat he had conducted a tainted investigation. The Trial Judge reliedinter alia on the depositions of DW1 and PW20 and held:

(i) The handwriting expert (DW1) has deposed that the writingson the Zimni Report dated 27.11.2012 do not match withthe standard writings of Nasib Singh. The prosecution hasnot examined any subordinate of Nasib Singh to provewhether the Zimni report was written under the instructionsor in the absence of instructions of the appellant; and

(ii) PW 20, the Head Constable who was a member of thepolice party that conducted the preliminary investigationheaded by Nasib Singh deposed that the appellant conductedall the proceedings according to the rules and proceduregoverning the investigation.

10. As regards the offence punishable under Section 306 readwith Section 34 in FIR 187 of 2012, the Additional Sessions Judge, Patialaconvicted the three accused but acquitted the appellant by a judgmentdated 29 January 2015. The appellant was acquitted with the followingfindings:

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A(i)There was nothing on record to show that the photo copyof the suicide note that was handed over to him by PW2has been tampered with. PW22 (SP Jaipal Singh) whoconducted the investigation after the appellant was removedfrom the investigation deposed that the preliminaryinvestigation conducted by the appellant was adopted byBhim during his further investigation; and

(ii) No other witness has deposed against the manner ofinvestigation conducted by the appellant. For the offenceunder Section 218 to be attracted, the prosecution must beable to prove that a public servant prepared a record knowingCthat it is incorrect. In the instant case, there is no evidenceto prove that the appellant had the intention to provide anincorrect record.

11. Nine appeals were filed before the High Court. Five appealswere filed by the accused appellants against the judgment and orderDdated 29 November 2014 of the Additional Sessions Judge, Patiala in thetrial arising out of FIR 96 of 2012 under Sections 328, 363A, 366, 376and 34 of the IPC. Similarly, appeals were also filed against the convictionof the accused and sentence imposed on 29 January 2015 arising out ofFIR 187 of 2012 dated 31 December 2012 under Sections 306read with34, 217, 218 and 120B of the IPC.E

12. The acquittal of the appellant of offences arising out of FIR96 and FIR 187 was also challenged by the prosecutrix’s mother in appealbefore the High Court. The High Court disposed of all the nine appealsby a common impugned judgment and order dated 20 December 2019.The High Court noted that the appeals arising out of the judgments ofFthe Additional Sessions Judge dated 29 November 2014 and 29 January2015 be listed together for final hearing.

13. The High Court remitted the judgments of conviction andacquittal dated 29 November 2014 and 29 January 2015 of the AdditionalSessions Judge in the trials arising out of FIR 96 and FIR 187 and directedGthat trials be clubbed and tried together as provided under Section 223CrPC. The High Court made the following observations during the courseof its judgment to arrive at the said conclusion:

(i) Most of the witnesses in the proceedings arising out of thedifferent FIRs are common. They are just numberedHdifferently;

(ii) The evidence in FIR 187 was produced during the trial inAFIR 96;

(iii) Both the offences arising out of FIR 96 and FIR 187 areconnected with each other. Serious prejudice would becaused if two separate trials are held. The evidence in boththe FIRs will have to be scanned together; B

(iv) The court is vested with the discretion to decide if the FIRsmust be tried together or separately. While exercising thediscretion, the court should apply the test of whether tryingthe FIRs separately would lead to illegality. However, inthis case both the offences in the separate FIRs “are soconnected together as to form part of the same transaction”; C

(v) The case of the prosecution is that the prosecutrix committedsuicide because of the rape committed by the accused. Inthe appeal filed by Gurpreet Singh alias Aman, an applicationwas filed under Section 391 of the CrPC to bring on recordadditional facts to show that another person by the name ofManpreet Singh had also attempted suicide on the sameday and at the same place as the prosecutrix and was takento the hospital by PW10-Harvinder Kaur, with whom theprosecutrix was staying at the relevant time. FIR 1 dated12 November 2013 was registered under Section 309 ofthe IPC at PS SAS Nagar. Both the prosecution and defenseare relying on the facts and evidence in both the cases.However, in view of the decision of the Supreme Court inNathi Lal v. State of UP[7], where it was laid down that theevidence in one case must not influence the decision inanother case, the evidence in the other case cannot be reliedon. In order to deliver justice, the evidence and facts arisingout of both FIR 96 and FIR 187 must be tried togetherunder Section 223 CrPC. The High Court observed:

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“This Court has also noticed that CRM-24912-2019 hasbeen filed by accused – appellant Gurpreet Singh @Aman in CRA-D-385-DB-2015, under Section 391Cr.P.C. for permission to bring on record additional factsto show that in fact another person named Manpreet G

ASingh, had also attempted suicide on the same day atthe same place as the deceased and was taken to hospitalby PW-10 – Harwinder Kaur (with whom the deceasedwas staying at that time). FIR No.1 dated 12.01.2013under Section 309 IPC was registered at Police Station.SAS Nagar, was registered in this regard. The learnedBcounsel by putting forth this evidence wanted to assertthat in fact the deceased had concocted story in theearlier FIR and had also committed suicide due todifferent reason(s).

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After going through the evidence and the facts mentionedabove this Court is of the view that both the allegedoffences are connected with each other in such a waythat a serious prejudice has been caused to bothprosecution as well as defence by the separate trials inthe said cases. This Court feels that unless the evidenceof both the FIRs is scanned together by the Court toarrive at final conclusion, it may lead to failure of justice.”

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(vi) Nasib Singh (appellant) was acquitted by the trial court inrespect of offences arising out of FIR 96 and FIR 187 andthe court must be slow to disturb it. However, because ofEthe apparent failure of justice, there is a necessity to remitthe case back for retrial. The High Court observed:

“We are conscious of the fact that one of the allegedaccused Nasib Singh who was tried together with theappellants during trial in both the FIRs was acquitted bythe trial Court in 2014. Thus, he had earned a right andwe should be slow in disturbing the same. But when theentire scenario is taken into consideration and is viewedfrom the angle of failure of justice then this Court is ofthe considered opinion that to maintain the balance anddelivery of justice, these cases should be remanded backfor retrial.”

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(vii) The following two cases were thus remitted:

(a) The judgment of conviction and order of sentencedated 29 November 2014 of the Additional SessionsJudge, Patiala arising out of FIR No.96 dated 27November 2012;and H

(b) The judgment of conviction and order of sentenceAdated 29 January 2015 of the Additional SessionsJudge, Patiala arising out of FIR No.187 dated 31December 2012.

14. Nasib Singh is in appeal before this Court.

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15. Leave has been granted.

Submissions

16. Mr Vipin Gogia, Counsel appearing on behalf of the appellantsubmitted that:

(i) Both sets of judgments – the judgment dated 29 November2014 of the Additional Sessions Judge arising from FIR 96alleging rape and the judgment dated 29 January 2015 arisingout of FIR 187 alleging abetment of suicide were renderedby one and the same court and by the same judge; C

(ii) The appellant was acquitted by the Additional SessionsDJudge in both the Sessions Trials and no appeal was filedby the State against the order of acquittal;

(iii) The appellant who had been dismissed from service wasreinstated;

(iv) Though Section 386(a) of the CrPC empowers theEAppellate Court in an appeal from an order of acquittal tointer alia reverse such an order and direct that a furtherenquiry be made or that the accused be retried or committedfor trial, the power to order a retrial is of an exceptionalnature and none of the well-established grounds for theexercise of the power have been demonstrated to exist inFthe present case;

(v) The order of the High Court remitting the judgment ofconviction and sentence imposed on the accused anddirecting a fresh trial has caused serious prejudice to theappellant since the order of acquittal in his favour has alsobeen set aside without any evaluation on merits and withoutcause or justification; G

(vi) The judgment of the High Court would cause seriousprejudice because two crucial witnesses PW20- HeadConstable Ranja Ram and PW17-Head Constable Gurjeet H

ASingh (who were part of the investigating team with theappellant) have died and their depositions in regard to thenature of the investigation conducted by the appellant wouldbe wiped out where fresh evidence has to be adduced atthe retrial; B(vii)During the course of the trial, PW2, PW12, PW17, PW21and PW22 were examined and their evidence woulddemonstrate that the investigation has been properlyconducted by the appellant. The benefit of the evidencewhich has been recorded during the course of the earliertrials would be totally obliterated if the case is remitted forCretrial;

(viii) The appellant is currently 65 years old. A de novo trialcould cause severe distress to him; and

(ix) Though the acquittal of the appellant was challenged bythe mother of the prosecutrix, it is material to note that sheDhas been declared hostile qua the appellant in the course ofthe criminal trial.

17. On the other hand Ms. Uttara Babbar, Counsel appearing onbehalf of the State of Punjab who has ably presented the case, submittedthat:

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(i) Section 218 of the CrPC postulates the general rule ofseparate trials for separate offences to which inter aliaSection 223 CrPC, which provides when persons may becharged and tried together, is an exception;

(ii) The High Court in the present case has applied the provisionsFof Section 223(d) under which persons accused of differentoffences committed in the course of the same transactionmay be charged and tried together but it is important tonote the precedents of this Court which establish that:

a)A joint trial is not peremptory but lies at the discretionGof the court; b)Whether a joint trial should be held must be decidedat the beginning of the trials;

c)The power of the Appellate Court to order a re-trialis of an exceptional nature which may be exercisedHonly where there is a failure of justice; d)The High Court has as a matter of fact not come toAthe conclusion that there would be a failure of justicebut only that there may occasion a failure of justiceif a joint trial is not ordered; and e)It is a settled principle of law that an order of re-trialwipes out the evidence from the record in whichBevent, it cannot exist for some accused and not forothers.

(iii) Though the State has not filed an appeal before this Courtagainst the judgment of the High Court nonetheless, it isopen to it to submit that the High Court has committed aCmanifest error in ordering a re-trial and remitting theconviction and sentence imposed; and

(iv) As a result of the impugned order of the High Court, therewould be a serious miscarriage of justice since the evidencewhich has been recorded in both the trials on the basis ofwhich the other accused-respondents were convicted ofserious offences involving a gang rape of the prosecutrixresulting in her committing suicide would be completelyobliterated and wiped out from the record.

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18. Opposing the above submissions, Mr. D Bharat Kumar, Counselappearing on behalf of Balwinder Singh (Respondent No.4) has urgedthe following submissions:

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(i) No appeal was filed by the State before this Court againstthe impugned judgment of the High Court remitting theconviction and sentence to the trial Court for a re-trial;

(ii) There are three FIR’s relating to the offences in the sametransaction- FIR 96/2012 arising out of the alleged gangrape of the prosecutrix; FIR 187/2012 arising out of thesuicide of the prosecutrix and FIR 1/2013 involvingManpreet Singh under Section 309 of the IPC and if theyare tried separately, it will lead to a miscarriage of justice; F

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(iii) In view of the decision of this Court in Nathi Lal v. Stateof UP[8], the evidence in one criminal trial cannot be reliedupon in a cross-case. Therefore, remitting for clubbing ofthe trials is the only option that would render justice; 8 (1990) Supp SCC 145

A(iv)The suicide of the prosecutrix is alleged to be a consequenceof the alleged gang rape which in itself is indicative of thefact that both the gang rape and the abetment of suicidefall within the ambit of Section 223(d) of the CrPC, whichprovides that persons may be tried jointly where differentoffences are alleged to be committed by different personsBin the course of the same transaction;

(v) The High Court has recorded in the impugned judgmentthat the prosecution had sought to rely upon the evidencewhich was recorded in both the cases arising out of FIRs96 and 187;and C

(vi) The order of retrial does not cause any prejudice to theappellant since the High Court had directed that freshcharges should be framed. It would be open to the appellantto pursue his remedies of seeking a discharge at that stage.

D19. The representation on behalf of the other accused persons isas follows : Dr Nishesh Sharma, learned counsel, has entered appearanceon behalf of the accused – Gurpreet Singh. Mr Narender Kumar Verma,learned counsel, has entered appearance on behalf of the accused –Sandeep Singh. There is no appearance on behalf of the accused –Shinderpal Kaur, though the office report indicates that she is served.ESince Shinderpal Kaur though served has not appeared in theseproceedings, we have requested Mr D Bharat Kumar to assist the Courtas amicus curiae. The submissions which have been urged by Mr DBharat Kumar would essentially cover the submissions of all the accused– respondents on whether the High Court is justified in remitting theirFconviction and sentence and ordering a re-trial.

Analysis

A. Power to Direct Retrial

20. Section 386 of the CrPC defines the powers of the AppellateGCourt and is extracted below:

“386. Power of the Appellate Court. After perusing such recordand hearing the appellant or his pleader, if he appears, and thePublic Prosecutor if he appears, and in case of an appeal undersection 377 or section 378, the accused, if he appears, the Appellate H

Court may, if it considers that there is no sufficient ground forinterfering, dismiss the appeal, or may- (a)in an appeal from an order or acquittal, reverse such orderand direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find himguilty and pass sentence on him according to law; (b)in an appeal from a conviction-

(i) reverse the finding and sentence and acquit or discharge theaccused, or order him to be re- tried by a Court of competentjurisdiction subordinate to such Appellate Court or committed fortrial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or theextent, or the nature and extent, of the sentence, but not so as toenhance the Same;

(c) in an appeal for enhancement of sentence-

(i) reverse the finding and sentence and acquit or discharge theaccused or order him to be re- tried by a Court competent to trythe offence, or

(ii) alter the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or theextent, or the nature and extent, of the sentence, so as to enhanceor reduce the same; (d)in an appeal from any other order, alter or reverse such order; (e)make any amendment or any consequential or incidental orderthat may be just or proper; Provided that the sentence shall not beenhanced unless the accused has had an opportunity of showingcause against such enhancement: Provided further that theAppellate Court shall not inflict greater punishment for the offencewhich in its opinion the accused has committed, than might havebeen inflicted for that offence by the Court passing the order orsentence under appeal.”

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AUnder clause (a), the Appellate Court is empowered inter alia inan appeal from an order of acquittal:

(i) To reverse such order and direct that a further inquiry bemade; or

(ii) That the accused be re-tried or committed for retrial; or B

(iii) Find him guilty and pass sentence on him according to law.

The power of the Appellate Court to order a retrial is alsorecognized in clause (b)(i) in the context of an appeal from a convictionand in clause (c)(i) in an appeal for enhancement of sentence.C

21. The scope of the power of the Appellate Court to direct a re-trial has come up before this Court for interpretation in several decisions.The judgment of a Constitution Bench in Ukha Kolhe v. State ofMaharashtra[9] has dealt with the issue extensively. In that case, theappellant was tried before the Judicial Magistrate for the offence ofDrash and negligent driving while under the influence of liquor therebycausing the death of one person and injuries to four others and foroffences under the Motor Vehicles Act. The Trial Judge held that theevidence was not sufficient to prove that the appellant was driving themotor vehicle at the time of the mishap and acquitted him of the offencesunder the Motor Vehicles Act and the Penal Code. But he held that theEevidence established that the appellant had consumed illicit liquor andcommitted an offence punishable under Section 66(b) of the BombayProhibition Act. The appellant was convicted and sentenced toimprisonment for three months and was directed to pay fine. On appeal,the Sessions Court set aside the order of the trial court and ordered aFretrial on the ground that a “fair and full trial” had not taken place. Therevision was summarily dismissed by the High Court which led to theappeal to this Court. Justice J.C. Shah, speaking for the ConstitutionBench observed:

“11. An order for retrial of a criminal case is made in exceptionalGcases, and not unless the appellate court is satisfied that the Courttrying the proceeding had no jurisdiction to try it or that the trialwas vitiated by serious illegalities or irregularities or on accountof misconception of the nature of the proceedings and on that H9 (1964) 1 SCR 926

account in substance there had been no real trial or that theProsecutor or an accused was, for reasons over which he had nocontrol, prevented from leading or tendering evidence material tothe charge, and in the interests of justice the appellate court deemsit appropriate, having regard to the circumstances of the case,that the accused should be put on his trial again. An order of re-trial wipes out from the record the earlier proceeding, and exposesthe person accused to another trial which affords the prosecutoran opportunity to rectify the infirmities disclosed in the earliertrial, and will not ordinarily be countenanced when it is made merelyto enable the prosecutor to lead evidence which he could but hasnot cared to lead either on account of insufficient appreciation ofthe nature of the case or for other reasons. [..]”

The Court held that though undoubtedly the trial before theMagistrate suffered from irregularities and the evidence led was deficienton important aspects; that could by itself not be a sufficient ground fordirecting a retrial. If additional evidence was to be brought on the record,a retrial was not required and the procedure prescribed by Section 428(i)of the 1898 Code could have been resorted to.

22. The above extract emphasizes that a retrial would not beordered unless the Appellate Court is satisfied that:

(i) The court trying the proceeding had no jurisdiction;

(ii) The trial was vitiated by serious illegalities and irregularitiesor on account of a misconception of the nature of theproceedings as a result of which no real trial was conducted;or

(iii) The prosecutor or an accused was for reasons beyond theircontrol prevented from leading or tendering evidencematerial to the charge and that in the interest of justice, theAppellate Court considers it appropriate to order a retrial.

Another feature which emerges from the above decision is thatan order of retrial wipes out from the record the earlier proceeding andexposes the present accused to another trial. It is for that reason that thecourt has affirmed the principle that a retrial cannot be ordered merelyon the ground that the prosecution did not produce proper evidence anddid not know how prove their case.

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A22. The next decision of significance is of a two Judge Bench inState of M P v. Bhooraji[10] . In that case eleven persons were charge-sheeted for offences including Section 302 read with Section 149 IPCand Section 3(2) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act. The accused were convicted underSections 148, 323 and 302/149 IPC and sentenced to imprisonment forBlife by the Additional Sessions Judge. During the pendency of the appealsbefore the High Court of Madhya Pradesh, the Supreme Court held in adecision in Gangula Ashok v. State of AP[11], that committal proceedingsare necessary for a specified court under the SC/ST Act to takecognizance of the offences to be tried. Initially in the State of MadhyaCPradesh, a Division Bench had adopted the same position in 1995. Thisjudgment of the Division Bench was overruled by a Full Bench in 1996.In view of the decision of this Court in Gangula Ashok (supra), theconvicted persons moved the High Court to quash the trial on the groundthat the Court of Session had no jurisdiction to take cognizance of andtry the case in the absence of an order of committal by the Magistrate.DThe High Court upheld the contention and ordered that the entire trialmust be quashed and directed retrial. The issue before this Court waswhether the High Court necessarily should have quashed the proceedingson account of the declaration of the law by this Court. Justice K.T.Thomas writing for a Bench consisting of Justice K.G Balakrishnan andEhimself stated that the Appellate Court can send the case for retrial onlywhen there is a ‘failure of justice’ and the court must be conscious ofthe huge pendency of cases in the trial court. It was observed thus:

“8. …… A de novo trial should be the last resort and that too onlywhen such a course becomes so desperately indispensable. ItFshould be limited to the extreme exigency to avert “a failureof justice”. Any omission or even the illegality in the procedurewhich does not affect the core of the case is not a ground forordering a de novo trial. This is because the appellate court hasplenary powers for revaluating and reappraising the evidence andeven to take additional evidence by the appellate court itself or toGdirect such additional evidence to be collected by the trial court.But to replay the whole laborious exercise after erasing the bulkyrecords relating to the earlier proceedings, by bringing down all 10 (2001) 7 SCC 679H11 (2000) 2 SCC 504

the persons to the court once again for repeating the wholedepositions would be a sheer waste of time, energy and costsunless there is miscarriage of justice otherwise. Hence the saidcourse can be resorted to when it becomes unpreventablefor the purpose of averting “a failure of justice”. Thesuperior court which orders a de novo trial cannot afford tooverlook the realities and the serious impact on the pendingcases in trial courts which are crammed with dockets, andhow much that order would inflict hardship on many innocentpersons who once took all the trouble to reach the courtand deposed their versions in the very same case. To themand the public the re-enactment of the whole labour might givethe impression that law is more pedantic than pragmatic. Law isnot an instrument to be used for inflicting sufferings on the peoplebut for the process of justice dispensation.”

23. In Zahira Habibulla Sheikh v. State of Gujarat[12], this Courthad directed the retrial of the “Best Bakery Case” where communalriots in the State of Gujarat had led to a massacre. The trial court hadacquitted the accused and the appeal against it was dismissed by theHigh Court. Along with the appeal, the High Court also dismissed thepetitions filed for adducing additional evidence and a direction seekingretrial. Justice Ajit Pasayat writing for a two judge Bench observed thiswas a fit case for directing retrial in view of the nature of additionalevidence sought to be adduced and the faulty manner in which the trialwas conducted:

“ 73. We are satisfied that it is a fit and proper case, in thebackground of the nature of additional evidence sought to beadduced and the perfunctory manner of trial conducted on thebasis of tainted investigation a retrial is a must and essentiallycalled for in order to save and preserve the justice-delivery systemunsullied and unscathed by vested interests. We should not beunderstood to have held that whenever additional evidence isaccepted, retrial is a necessary corollary. The case on hand iswithout parallel and comparison to any of the cases where evensuch grievances were sought to be made. It stands on its own as A

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Aan exemplary one, special of its kind, necessary to prevent itsrecurrence. It is normally for the appellate court to decide whetherthe adjudication itself by taking into account the additional evidencewould be proper or it would be appropriate to direct a fresh trial,though, on the facts of this case, the direction for retrial becomesinevitable.”B

24. In Satyajit Banerjee v. State of West Bengal[13], the trialcourt acquitted the appellant who was charged with offences underSections 498A and 306 IPC. The High Court noted the infirmities in thecase of the prosecution such as seizure of the suicide note 125 dayslater, non-examination of the handwriting expert and belated filing of theCFIR and observed that the trial court ought to have invoked its powersunder Section 311 CrPC and examined additional evidence. However, itwent on to set aside the acquittal of the appellants and directed a retrial.On appeal, this Court did not disturb the finding of the High Court sincethe trial court had already began the trial fresh. However, the CourtDcautioned that the Appellate Court may direct a re-trial only in exceptionalcases. This court also distinguished the Best Bakery case and heldthat that was an extraordinary case and the principles laid down in itcannot be applied to all cases uniformly. As a matter of general rule, aretrial cannot be directed to adduce additional evidence and correct thefaulty investigation:E

“25. Since strong reliance has been placed on Best Bakerycase [(2004) 4 SCC 158 : 2004 SCC (Cri) 999] (Gujarat riotscase) it is necessary to record a note of caution. That was anextraordinary case in which this Court was convinced that theentire prosecution machinery was trying to shield the accused i.e.Fthe rioters. It was also found that the entire trial was a farce. Thewitnesses were terrified and intimidated to keep them away fromthe court. It is in the aforesaid extraordinary circumstances thatthe court not only directed a de novo trial of the whole case butmade further directions for appointment of the new prosecutorGwith due consultation of the victims. Retrial was directed to beheld out of the State of Gujarat.

26. The law laid down in Best Bakery case [(2004) 4 SCC 158 :2004 SCC (Cri) 999] in the aforesaid extraordinary circumstances, H13 2005 (1) SCC 115

cannot be applied to all cases against the established principles ofcriminal jurisprudence. Direction for retrial should not be made inall or every case where acquittal of accused is for want of adequateor reliable evidence. In Best Bakery case [(2004) 4 SCC 158 :2004 SCC (Cri) 999] the first trial was found to be a farce and isdescribed as “mock trial”. Therefore, the direction for retrial wasin fact, for a real trial. Such extraordinary situation alone canjustify the directions as made by this Court in Best Bakerycase [(2004) 4 SCC 158 : 2004 SCC (Cri) 999] .

27. So far as the position of law is concerned we are very clearthat even if a retrial is directed in exercise of revisional powers bythe High Court, the evidence already recorded at the initial trialcannot be erased or wiped out from the record of the case. Thetrial Judge has to decide the case on the basis of the evidencealready on record and the additional evidence which would berecorded on retrial.”

25. A three Judge Bench of this Court in Mohd Hussain v. State(Government of NCT of Delhi),[14] dealt with the question of retrialunder Section 386 CrPC. In that case, a foreign National was subjectedto trial for causing a bomb blast in a public transport vehicle. The trialCourt convicted the accused and imposed the death sentence. On appeal,the High Court dismissed the appeal, confirming the sentence. However,the two judge Bench of this Court observed that the trial was vitiated.While one of the learned judges ordered the accused person’s release,the other ordered for a time-bound retrial. A larger Bench confirmed thesecond view directing a retrial, however, observing that the power mustbe exercised by the appellate Court in exceptional situations. It wasobserved that keeping in view the gravity of the offence and the denialof due process, a retrial was warranted:

“41. The appellate court hearing a criminal appeal from a judgmentof conviction has power to order the retrial of the accused underSection 386 of the Code. That is clear from the bare language ofSection 386(b). Though such power exists, it should not beexercised in a routine manner. A de novo trial or retrial of theaccused should be ordered by the appellate court in exceptionaland rare cases and only when in the opinion of the appellate court A

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Asuch course becomes indispensable to avert failure of justice.Surely this power cannot be used to allow the prosecution toimprove upon its case or fill up the lacuna. A retrial is not thesecond trial; it is continuation of the same trial and sameprosecution. The guiding factor for retrial must always be demandof justice. Obviously, the exercise of power of retrial under SectionB386(b) of the Code, will depend on the facts and circumstancesof each case for which no straitjacket formula can be formulatedbut the appeal court must closely keep in view that while protectingthe right of an accused to fair trial and due process, the peoplewho seek protection of law do not lose hope in legal system andCthe interests of the society are not altogether overlooked.”26. In Nar Singh v. State of Haryana[15], this Court wasconsidering the question whether the Appellate Court can direct a retrialif all the relevant questions are not put to the accused by the trial courtas required under Section 313 CrPC. This Court answered the questionDin the affirmative, holding that the Appellate Court may direct a retrialin such circumstances from the stage of questioning the accusedbecause non-compliance of Section 313 CrPC had caused prejudiceto the accused:

“30.3. If the appellate court is of the opinion that non-complianceEwith the provisions of Section 313 CrPC has occasioned or islikely to have occasioned prejudice to the accused, the appellatecourt may direct retrial from the stage of recording thestatements of the accused from the point where the irregularityoccurred, that is, from the stage of questioning the accused underFSection 313 CrPC and the trial Judge may be directed to examinethe accused afresh and defence witness, if any, and dispose ofthe matter afresh.”

27. The provisions of section 386(d)(1) CrPC have come up forconsideration before a two judge Bench of this Court in Ajay KumarGGhoshal v. State of Bihar[16] (“Ajay Kumar Ghoshal”). In that case,the trial court convicted the accused of an offence under Section 302and the provisions of the Dowry Prohibition Act, among others. On 15 (2015) 1 SCC 49616 (2017) 12 SCC 699H

appeal, the High Court set aside the order of conviction and remittedhe matter to the trial court for a fresh trial, pointing out the lapses onthe part of the investigating officer and the trial court in the recordingof evidence. This Court set aside the judgment of the High Court bydistinguishing it from Nar Singh (supra) on the ground that in NarSingh important evidence such as the ballistic report and otherincriminating evidence was not put to the accused in the course ofrecording the statement under Section 313. It was also held that it isnecessary for the High Court to explain the ‘lapses in the trial’ andhow the lapse has caused prejudice to the accused. Justice Banumathiwriting for a two Judge Bench observed:

“8. In para 29 of its judgment, the High Court pointed out certainlapses; but has not stated as to how such alleged lapses haveresulted in miscarriage of justice necessitating retrial. Certainlapses either in the investigation or in the “conduct of trial” arenot sufficient to direct retrial. The High Court being the firstappellate court is duty-bound to examine the evidence and arriveat an independent finding based on appraisal of such evidenceand examine whether such lapses actually affect the prosecutioncase; or such lapses have actually resulted in failure of justice.

11. Though the word “retrial” is used under Section 386(b)(i)CrPC, the powers conferred by this clause is to be exercisedonly in exceptional cases, where the appellate court is satisfiedthat the omission or irregularity has occasioned in failure ofjustice. The circumstances that should exist for warranting aretrial must be such that where the trial was undertaken by thecourt having no jurisdiction, or trial was vitiated by seriousillegality or irregularity on account of the misconception of natureof proceedings. An order for retrial may be passed in caseswhere the original trial has not been satisfactory for someparticular reasons such as wrong admission or wrong rejectionof evidences or the court refused to hear certain witnesses whowere supposed to be heard.”

Explaining the concept of a de novo trial, the Court held:

“12. ”De novo” trial means a “new trial” ordered by an appellatecourt in exceptional cases when the original trial failed to make adetermination in a manner dictated by law.”

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594SUPREME COURT REPORTS

[2021] 13 S.C.R.

AThis principle was reiterated in Isaac v. Ronald Cheriyan[17]andMary Pappa Jebamani v. Ganesan[18].28. The principles that emerge from the decisions of this Court onretrial can be formulated as under:

(i) The Appellate Court may direct a retrial only in ‘exceptional’Bcircumstances to avert a miscarriage of justice;

(ii) Mere lapses in the investigation are not sufficient to warranta direction for re-trial. Only if the lapses are so grave so asto prejudice the rights of the parties, can a retrial be directed; C(iii)A determination of whether a ‘shoddy’ investigation/trialhas prejudiced the party, must be based on the facts ofeach case pursuant to a thorough reading of the evidence;

(iv) It is not sufficient if the accused/ prosecution makes a facialargument that there has been a miscarriage of justiceDwarranting a retrial. It is incumbent on the Appellant Courtdirecting a retrial to provide a reasoned order on the natureof the miscarriage of justice caused with reference to theevidence and investigatory process;

(v) If a matter is directed for re-trial, the evidence and recordof the previous trial is completely wiped out; andE

(vi) The following are some instances, not intended to beexhaustive, of when the Court could order a retrial on theground of miscarriage of justice:

a)The trial court has proceeded with the trial in theFabsence of jurisdiction; b)The trial has been vitiated by an illegality or irregularitybased on a misconception of the nature of theproceedings; and

c)The prosecutor has been disabled or prevented fromGadducing evidence as regards the nature of thecharge, resulting in the trial being rendered a farce,sham or charade.

17 (2018) 2 SCC 278H18 (2014) 14 SCC 477

B. Power to Direct Joint Trial

29. The question before the Court is whether the non-joinder ofthe trials in FIR 96 and FIR 187 has caused a miscarriage of justice,prejudicing the rights of the accused-respondents or the case of theprosecution such that it necessitated the order of the High Court directinga retrial after clubbing the proceedings arising out of both the FIRs.Before we refer to the judicial pronouncements on this issue, it isnecessary that we advert to the statutory provisions relating to framingand joinder of charges.

30. Chapter 17 of the CrPC, 1973 deals with “the charge”. Part Acomprising of Sections 211 to 217 is titled “form of charges”. Part Bcomprising Sections 218 to 224 is titled “joinder of charges”. Section218 provides as follows:

“218. Separate charges for distinct offences.—(1) For everydistinct offence of which any person is accused there shall be aseparate charge, and every such charge shall be tried separately:

Provided that where the accused person, by an application inwriting, so desires and the Magistrate is of opinion that such personis not likely to be prejudiced thereby, the Magistrate may trytogether all or any number of the charges framed against suchperson.

(2) Nothing in sub-section (1) shall affect the operation of theprovisions of sections 219, 220, 221 and 223.

31. Sub-section(1) of section 218 stipulates first, that there mustbe a separate charge for every distinct offence of which any person isaccused and second, that every such charge must be tried separately.However, under the proviso, where the person accused makes a requestin writing to the Magistrate and the latter is of the opinion that suchperson is not likely to be prejudiced, the Magistrate may try all or any ofthe charges framed against the person together. Sub-section (2) of Section218 stipulates that nothing in sub-section (1) would affect the operationof the provisions of Sections 219 to 221 and 223. Section 219(1) stipulatesthat when a person is accused of more than one offence of the samekind of offences, all of which are committed within the space of twelvemonths whether in respect of the same person or otherwise, he may becharged with and tried at one trial for up to three of them. Sub-section(2) of Section 219 provides that offences are of a same kind when they A

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Aare punishable with the same amount of punishment under the samesection of the IPC or of any special or local law. Section 220(1) stipulatesthat if in one series of actss “so connected together as to form the sametransaction”, more than one offence is committed by the same person,he may be tried at one trial for every such offence. Sub-section (2)stipulates that a person maybe tried together for offence when theBsituation arises where a person is charged with one or more offences ofcriminal breach of trust or dishonest misappropriation of property asprovided in sub-Section(2) of Section 212 or in sub-Section (1) of Section219, and the person is accused of committing, for the purpose of facilitatingor concealing the commission of that offence(s) one or more offencesCof falsification of accounts. Sub-Section (3) of Section 220 enunciatesthat if the acts alleged constitute an offence falling within two or moreseparate definitions of any law in force for the time being by whichoffences are defined or punished, the person accused may be chargedwith and tried at one trial for each of such offences. Sub-Section(4) of Section 220 envisages a situation where several acts of which one orDmore than one, would by itself or by themselves constituent an offence,constitute when combined a different offence; in that event, the personaccused may be charged with and tried in one trial for that offenceconstituted by such acts when combined and for any offence constitutedby any one or more of such acts. Section 222 provides that where aEperson is charged with an offence consisting of several particulars, acombination of some only of which constitutes a minor offence and suchcombination is proved but the remaining particulars are not proved, hemay be convicted of the minor offence though he was not charged withit. Sub-section(2) of Section 222 provides that when a person is chargedwith an offence and facts are proved which reduce it to a minor offence,Fhe may be convicted of the minor offence, although he is not chargedwith it.

32. Section 223 provides as follows: -

“223. What persons may be charged jointly.—The followingGpersons may be charged and tried together, namely:—(a) persons accused of the same offence committed in the courseof the same transaction; (b) persons accused of an offence and persons accused ofabetment of, or attempt to commit, such offence;H

(c) persons accused of more than one offence of the same kind,within the meaning of section 219 committed by them jointly withinthe period of twelve months; (d) persons accused of different offences committed in thecourse of the same transaction; (e) persons accused of an offence which includes theft, extortion,cheating, or criminal misappropriation, and persons accused ofreceiving or retaining, or assisting in the disposal or concealmentof, property possession of which is alleged to have been transferredby any such offence committed by the first-named persons, or ofabetment of or attempting to commit any such last-named offence; (f) persons accused of offences under sections 411 and 414 ofthe Indian Penal Code (45 of 1860) or either of those sections inrespect of stolen property the possession of which has beentransferred by one offence; (g) persons accused of any offence under Chapter XII of theIndian Penal Code (45 of 1860) relating to counterfeit coin andpersons accused of any other offence under the said Chapterrelating to the same coin, or of abetment of or attempting to commitany such offence; and the provisions contained in the former partof this Chapter shall, so far as may be, apply to all such charges:

Provided that where a number of persons are charged with separateoffences and such persons do not fall within any of the categoriesspecified in this section, the 1 [Magistrate or Court of Session]may, if such persons by an application in writing, so desire, and 2[if he or it is satisfied] that such persons would not be prejudiciallyaffected thereby, and it is expedient so to do, try all such personstogether.

33. Section 223 begins with the expression “persons accused”meaning thereby that the provision is applied when more than one personis involved in the commission of an offence or offences. Section 223stipulates - in clauses (a) to (g) - situations where persons may be chargedand tried together. Clause (a) envisages a situation where persons areaccused of the same offence committed in the course of the sametransaction. Clause (b) envisages a situation where persons accused of A

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Aan offence and persons accused of abetment or attempt to commit theoffence may be charged and tried together. Clause (c) applies to asituation where persons are accused of more than one offence of thesame kind within the meaning of Section 219 committed by them jointlywithin twelve months. Clause (d) envisages that persons accused ofdifferent offences committed in the course of the same transaction mayBbe charged and tried together. Clauses (e), (f) and (g) deal with specificsituations envisaged therein. The proviso to Section 223 stipulates thatwhere a number of persons are charged with separate offences andsuch persons do not fall within the ambit of the categories specified inclauses (a) to (g), the Magistrate may, if such persons so desire, in writing,Cand if he is satisfied that they would not be prejudicially affected, and itis expedient to do so, try all such persons together.

34. Section 239(d) of the old Code which corresponds to Section223(d)of the CrPC 1973 was interpreted by a three-Judge Bench of thisCourt in State of Andhra Pradesh v. Cheemalapati Ganeswara Rao[19]Dby juxtaposing the provision with Section 225(1) of the old Code, whichis Section 219(1) of CrPC 1973. In that case, two respondents alongwith two others were tried together for offences under the Penal Code.The High Court set aside the convictions on the ground that inter aliathe joint trial of two or more offences committed by each of them isEillegal. Justice Mudholkar speaking for the Bench observed that the phrase“offence committed in the course of the same transaction” would meanoffences that are committed in the proximity of time or place, or unity ofpurpose and design :“25. According to Mr Chari Section 235(1) cannot be construedFas having an overriding effect on Section 239 because whereas itcontemplates acts so connected together as to form the sametransaction resulting in more offences than one, Section 239(d)contemplates offences committed in the course of the sametransaction and nothing more. The question is whether for thepurposes of Section 239(d) it is necessary to ascertain anythingGmore than this that the different offences were committed in thecourse of the same transaction or whether it must further beascertained whether the acts are intrinsically connected with oneanother. Under Section 235(1) what has to be ascertained is whether the offences arise out of acts so connected together asto form the same transaction, but the words “so connected togetheras to form” are not repeated after the words “same transaction”in Section 239. What has to be ascertained then is whether thesewords are also to be read in all the clauses of Section 239 whichrefer to the same transaction. Section 235(1), while providing forthe joint trial for more than one offence, indicates that there mustbe connection between the acts and the transaction. According tothis provision there must thus be a connection between a series ofacts before they could be regarded as forming the sametransaction. What is meant by “same transaction” is not definedanywhere in the Code. Indeed, it would always be difficult todefine precisely what the expression means. Whether a transactioncan be regarded as the same would necessarily depend upon theparticular facts of each case and it seems to us to be a difficulttask to undertake a definition of that which the Legislature hasdeliberately left undefined. We have not come across a singledecision of any Court which has embarked upon the difficult taskof defining the expression. But it is generally thought thatwhere there is proximity of time or place or unity of purposeand design or continuity of action in respect of a series ofacts, it may be possible to infer that they form part of thesame transaction. It is, however, not necessary that every oneof these elements should co-exist for a transaction to be regardedas the same. But if several acts committed by a person show aunity of purpose or design that would be a, strong circumstance toindicate that those acts form part of the same transaction. Theconnection between a series of acts seems to us to be anessential ingredient for those acts to constitute the sametransaction and, therefore, the mere absence of the words“so connected together as to form” in clauses (a), (c) and(d) of Section 239 would make little difference. Now atransaction may consist of an isolated act or may consist of aseries of acts. The series of acts which constitute a transactionmust of necessity be connected with one another and if some ofthem stand out independently they would not form part of thesame transaction but would constitute a different transaction ortransactions. Therefore, even if the expression “same transaction”alone had been used in Section 235(1) it would have meant a AB

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Atransaction consisting either of a single act or of a series ofconnected acts. The expression “same transaction” occurring inclauses (a), (c) and (d) of Section 239 as well as that occurring inSection 235(1) ought to be given the same meaning according tothe normal rule of construction of statutes [..].”

BThe Bench held that holding a separate trial is the rule and a jointtrial is the exception. However, in case the accused persons commitdifferent offences forming a part of the same transaction, a joint trialwould be the rule unless it is proved that joint trial would cause difficulty:

“28. […] No doubt, as has been rightly pointed out in this case,Cseparate trial is the normal rule and joint trial is an exception. Butwhile this principle is easy to appreciate and follow where oneperson alone is the accused and the interaction or intervention ofthe acts of more persons than one does not come in, it wouldwhere the same act is committed by several persons, be not onlyinconvenient but injudicious to try all the several persons separately.DThis would lead to unnecessary multiplicity of trials involvingavoidable inconvenience to the witnesses and avoidableexpenditure of public time and money. No corresponding advantagecan be gained by the accused persons by following the procedureof separate trials. Where, however, several offences are allegedEto have been committed by several accused persons it may bemore reasonable to follow the normal rule of separate trials. Buthere, again, if those offences are alleged not to be whollyunconnected but as forming part of the same transactionthe only consideration that will justify separate trials wouldbe the embarrassment or difficulty caused to the accusedFpersons in defending themselves.”

This Court, however, held that the High Court was wrong in settingaside the order of conviction on the ground of misjoinder of parties. Itwas observed that the court could have set aside the order of convictiononly on the ground that such misjoinder caused a failure of justice to theGaccused and not merely because there is misjoinder of parties:

“31. Even if we were to assume that there has been a misjoinderof charges in violation of the provisions of Section 233 to 239 ofthe Code, the High Court was incompetent to set aside theconviction of the respondents without coming to the definite H

conclusion that misjoinder had occasioned failure of justice. Thisdecision completely meets the argument based upon Dawsoncase [(1960) 1 All ER 558]. Merely because the accused personsare charged with a large number of offences and convicted at thetrial the conviction cannot be set aside by the appellate court unlessit in fact came to the conclusion that the accused persons wereembarrassed in their defence with the result that there was afailure of justice. For all these reasons we cannot accept theargument of learned counsel on the ground of misjoinder of chargesand multiplicity of charges.”

This interpretation placed on Section 223(d) CrPC was relied onin a decision of this Court in R. Dineshkumar v. State[20].

35. In Chandra Bhal v. The State of UP[21], the appellant wasconvicted of an offence under Section 302, while the two co-accusedwho were charged with offences under Section 302 read with Section34 of the Penal Code were acquitted. The conviction was affirmed bythe High Court. Before this Court, the question canvassed was that inthe incident in which the deceased was shot by the appellant, someother persons were also shot dead and wounded. The appellant contendedthat the trials for those incidents were held separately which hadprejudiced the appellant in his trial. The plea of the appellant was thatthe acquittal of the appellant in those cases on the plea of self-defencewould also serve as conclusive proof of his plea of self-defence in thesubsequent trial, and not clubbing the trial prejudiced him. Whileinterpreting the provisions of Section 223 of the CrPC, the Court speakingthrough Justice ID Dua observed:

“5. Turning to the provisions of the Code, Section 233 embodiesthe general mandatory rule providing for a separate charge forevery distinct offence and for separate trial for every such charge.The broad object underlying the general rule seems to be to giveto the accused a notice of the precise accusation and to save himfrom being embarrassed in his defence by the confusion which islikely to result from lumping together in a single charge distinctoffences and from combining several charges at one trial. Thereare, however, exceptions to this general rule and they are found in 20 (2015) 7 SCC 497

21 1971 (3) SCC 983

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ASections 234, 235, 236 and 239. These exceptions embrace casesin which one trial for more than one offence is not consideredlikely to embarrass or prejudice the accused in his defence. Thematter of joinder of charges is, however, in the general discretionof the court and the principle consideration controlling the judicialexercise of this discretion should be to avoid embarrassment toBthe defence by joinder of charges. On the appellant’s argumentthe only provision requiring consideration is Section 235(1) whichlays down that if in one series of acts so connected together as toform the same transaction more offences than one are committedby the same person then he may be charged with and tried at oneCtrial for every such offence. This exception like the otherexceptions merely permits a joint trial of more offencesthan one. It neither renders a joint trial imperative nor doesit bar or prohibit separate trials. Sub-section (2) of Section403 of the Code also provides that a person acquitted or convictedof any offence may be afterwards tried for any distinct offenceDfor which a separate charge might have been made against himon the former trial under Section 235(1). No legal objection to theappellant’s separate trial is sustainable and his counsel hasadvisedly not seriously pressed any before us.”

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36. The Court observed that a separate trial on the charge ofcausing the homicidal death of one ‘L’ was not contrary to law even if ajoint trial of this offence together with others was permissible. The Courtalso observed that this matter was required to be considered by the trialcourt at the beginning of the trial and is not to be determined on the basisFof the result of the trial. The Court further observed that its attentionwas not drawn to any material on record suggesting that prejudice hadbeen caused to the appellant as a result of a separate trial. It was finallyheld that the plea of self defence and the argument that both the offenceswere committed during the course of the same transaction was rejectedGby both the courts below, and that the court would not interfere withconcurrent findings of fact. The judgment therefore lays down threesignificant principles on joint trials:

(i) A separate trial is not contrary to law even if a joint trial forthe offences along with other offences is permissible;H

(ii) The possibility of a joint trial has to be decided at theAbeginning of the trial and not on the basis of the result ofthe trial; and

(iii) The true test is whether any prejudice has been sustainedas a result of a separate trial. In other words, a retrial witha direction of a joint trial would be ordered only if there is aBfailure of justice.

37. In Essar Teleholdings Limited v. Central Bureau ofInvestigation[22], Justice R F Nariman, speaking for a three-Judge Benchreiterated the principles which have been enunciated in Chandra Bhal(supra). Further, it was held that even if the conditions stipulated in Section223 CrPC to conduct a joint trial have been fulfilled, it may not be desirousto direct a joint trial if a joint trial would (i) prolong the trial; (ii) causeunnecessary wastage of judicial time; and (iii) confuse or cause prejudiceto the accused, who had taken part only in some minor offence.

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38. From the decisions of this Court on joint trial and separatetrials, the following principles can be formulated:

(i) Section 218 provides that separate trials shall be conductedfor distinct offences alleged to be committed by a person.Sections 219- 221 provide exceptions to this general rule.If a person falls under these exceptions, then a joint trial forEthe offences which a person is charged with may beconducted. Similarly, under Section 223, a joint trial may beheld for persons charged with different offences if any ofthe clauses in the provision are separately or on a combinationsatisfied; F

(ii) While applying the principles enunciated in Sections 218-223 on conducting joint and separate trials, the trial courtshould apply a two-pronged test, namely, (i) whetherconducting a joint/separate trial will prejudice the defenceof the accused; and/or (ii) whether conducting a joint/Gseparate trial would cause judicial delay.

(iii) The possibility of conducting a joint trial will have to bedetermined at the beginning of the trial and not after the Atrial based on the result of the trial. The Appellate Courtmay determine the validity of the argument that there oughtto have been a separate/joint trial only based on whetherthe trial had prejudiced the right of accused or theprosecutrix; B(iv)Since the provisions which engraft an exception use thephrase ‘may’ with reference to conducting a joint trial, aseparate trial is usually not contrary to law even if a jointtrial could be conducted, unless proven to cause amiscarriage of justice; and C

(v) A conviction or acquittal of the accused cannot be set asideon the mere ground that there was a possibility of a joint ora separate trial. To set aside the order of conviction oracquittal, it must be proved that the rights of the partieswere prejudiced because of the joint or separate trial, asDthe case may be.

39. At this stage, it would be necessary in the present case torevisit the judgment of the Additional Sessions Judge Ranhaula dated 29January 2015in FIR 187 of 2012. The allegation against the appellantwas that that he had made a tainted investigation in the rape case (FIRE96) so as to help the accused and had abetted the commission of suicideby the deceased. The Trial judge while acquitting the appellant foundthat:

(i) The appellant’s name is not mentioned in the suicide note; F(ii)The original suicide note which was taken into possessionby PW 22 (investigating Officer) had not been tamperedwith by the appellant and PW 22 had admitted during hiscross-examination that the preliminary investigationconducted by the appellant had been adopted by him duringfurther investigation; and G

(iii) Surjit Kaur-PW12, Harmeet Kaur-PW2 and PW21 had notmade any allegation during the course of their evidenceagainst the appellant but on the contrary had stated that hehad conducted a proper investigation.

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On appreciating the evidence, the trial Judge came to the conclusionthat there was an absence of evidence on record to demonstrate thatthe appellant committed any offence under Sections 306, 217, and 218of the Penal Code.

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40. The High Court has proceeded to order a retrial holding that aseparate trial in FIR 96 and FIR 187 has caused prejudice to both theparties in as much as they were unable to rely on the evidence in theother case. In this context, the following conclusions were drawn by theHigh Court :

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(i) The Court has the discretion to conduct a joint trial for boththe alleged offences, namely, the gang rape of the prosecutrixand the resultant suicide and its abetment since they areconnected in view of Section 223(d) CrPC; C

(ii) The prosecution and the defence are relying on the factsand evidence of both the cases- FIR 96 and 187. But sinceDthe trials were separately held, in view of Nathi Lal (supra),the Court was unable to refer to the evidence in the othercase. If the evidence in the trials arising out of both FIRs isnot scanned together by the court to arrive at the finalconclusion, it will lead to a failure of justice; and E

(iii) Though Nasib Singh (the appellant) was acquitted in bothFIR 96 and FIR 187, taking into the consideration the entiresituation and ‘the angle of failure of justice, the case mustbe remanded for retrial.

41. The decision of this Court in Nathi Lal is reported as an orderwhich states that cross cases must be disposed of by two separatejudgments without referring to the evidence in the other case. The orderis extracted below in its entirety:

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“1. Special leave granted. Heard both the sides.

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2. We think that the fair procedure to adopt in a matter like thepresent where there are cross cases, is to direct that the samelearned Judge must try both the cross cases one after the other.After the recording of evidence in one case is completed, hemust hear the arguments but he must reserve the judgment.Thereafter he must proceed to hear the cross case and after H

Arecording all the evidence he must hear the arguments but reservethe judgment in that case. The same learned Judge mustthereafter dispose of the matters by two separate judgments. Indeciding each of the cases, he can rely only on the evidencerecorded in that particular case. The evidence recorded in thecross case cannot be looked into. Nor can the judge be influencedBby whatever is argued in the cross case. Each case must bedecided on the basis of the evidence which has been placed onrecord in that particular case without being influenced in anymanner by the evidence or arguments urged in the cross case.But both the judgments must be pronounced by the same learnedCJudge one after the other.

3. We allow this appeal partly to the aforesaid extent and directthe learned Judge to proceed with the police case and the crosscase instituted by the respondent-complainant by way of aprivate complaint and hold the trial in both the matters in theDlight of the directions given hereinabove. Learned Judge willaccord priority to these cross cases and dispose of both thecases expeditiously.”

42. In deciding upon the correctness of the judgment of the HighCourt in the present case, it is necessary to emphasize that the power toEorder a retrial has been consistently held to be of an exceptional naturebeginning with the formulation of the principles by the Constitution Benchin Ukha Kolhe (supra) and the resultant formulation, more recently, bythe two judge Bench in Ajay Kumar Ghoshal (supra). Directing a jointtrial is not mandatory but lies within the discretion of the Court underFSection 223 of the CrPC. Clause (d) of Section 223 permits personsaccused of different offences committed in the course of the sametransaction to be charged and tried together. While explaining the ambitof the corresponding provision of the Code of 1898, this Court in ChandraBhal (supra) has emphatically ruled that:

G(i)The statutory provision neither renders a joint trial imperativenor does it bar or prohibit separate trials;

(ii) The matter is required to be determined by the trial court atthe beginning of the trial and it is not to be determined onthe basis of the result of the trial; andH

(iii) Where the issue is raised in the court of appeal, clearAprejudice must be established as having been caused as aresult of the separate trial.

43. A formulation similar to that in Chandra Bhal findsexpression in the two judge Bench decision in Bhooraji (supra) wherethe Court emphasized that a de novo trial should be a matter of lastresort only when such a course of action becomes “so desperate andindisputable”. Moreover, this Court emphasized that the Appellate Courtwould do so in an extreme exigency to avert a failure of justice. Whileexercising its power as a Court of appeal under Section 386 CrPC, theCourt has to be conscious of the fundamental principle that the powerto order a de novo trial or “that the accused be retried or committedfor trial” is of an exceptional nature which is intended to prevent themiscarriage of justice. The same principle is in fact embodied in section465(1)[23] of the CrPC.

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44. The effect of an order of retrial is ordinarily speaking to wipeout the evidence recorded at the earlier stage. As Justice JC Shah,speaking for the Constitution Bench observed “an order of retrial wipesout from the record the earlier proceeding[…]”. This is againreemphasized by Justice K T Thomas in Bhooraji (supra) whilecautioning against the “Replay [of] the whole laborious exercise aftererasing the bulky records relating to the earlier proceedings by bringingdown all the persons to the court once again for repeating the wholedepositions”. We have noted subsequent decisions which make somedeparture from the ‘wiping out of the evidence recorded’ formulation todeal with exigencies bearing on facilitating the ends of justice. We neednot dwell on them, save to have noticed them.

45. The High Court in the present case was conscious of the factthat the appellant Nasib Singh was tried together with the other appellants DE

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23 "465. Finding or sentence when reversible by reason of error, omission orirregularity.—(1) Subject to the provisions hereinbefore contained, no finding, sentenceor order passed by a Court of competent jurisdiction shall be reversed or altered by aCourt of appeal, confirmation of revision on account of any error, omission or irregularityin the complaint, summons, warrant, proclamation, order, judgment or other proceedingsbefore or during trial or in any inquiry or other proceedings under this Code, or anyerror, or irregularity in any sanction for the prosecution, unless in the opinion ofthat Court, a failure of justice has in fact been occasioned thereby.

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Aduring the trials in both the FIRs in view of Section 223(a) CrPC[24]. Theappellant was acquitted in the Sessions trial arising out of FIR 96 on 29November 2014 and in the trial arising out of FIR 187/2012 on 29 January2015. Though the High Court noted that “he had earned a right and weshould be slow in disturbing the same”, it yet remanded both the casesback for retrial “to maintain balance and delivery of justice”. There isBmerit in the submission which had been urged both by counsel for theappellant and for the State of Punjab that the order of retrial wipes outthe entire record of evidence. The evidence which has been recordedduring the separate trials cannot exist for some of the accused and notfor the others. The effect of the decision of the High Court is to relegateCthe appellant to a fresh trial together with the other accused. The HighCourt has in fact directed that the trial would be conducted afresh byobserving that the accused be charged together for the different offencescommitted by them.

46. The appellant has set up the plea that ordering are trial at thisDstage would be a matter of serious prejudice since crucial witnesses(PW20 and PW17) who deposed in regard to the manner in which theinvestigation was conducted by the appellant have since died. Apartfrom the above considerations, the High Court could not have beenoblivious of the seriousness of the alleged offences of which the accusedwere charged. FIR 96 was registered on 27 November 2012 for offencesEpunishable under Section 328, 363A, 366 and 376 read with Section 34of the Penal Code. The appellant was implicated on 11 January 2013after the provisions of Sections 217, 218 and 120B were added. Therewas a serious allegation of a gang rape having been committed on theprosecutrix which is alleged to have ultimately resulted in her suicide onF26 December 2012 leading to the registration of FIR 100 under Section306/34 IPC which was transferred to PS Samana and registered as FIR187. The High Court by its impugned judgment and order dated 20December 2019 remitted the conviction and sentence of the accusedand the acquittal of the appellant to the trial court and ordered a retrial.With a lapse of over 7 years since the date of the incident, a retrialGwould not advance the cause of justice but would result in a serious 24 223. What persons may be charged jointly.—The following persons may be chargedand tried together, namely:— (a) persons accused of the same offence committed in thecourse of the same transaction;[..]H

miscarriage of justice. The judgment of the High Court is a travesty ofjustice.

47. Even if it is conceded that the alleged offences committed inFIR 96 and FIR 197 were committed in the course of the same transaction,within the meaning of the phrase in Section 223(d), in view of theinterpretation in Cheemalapati Ganeswara Rao (supra), it does notwarrant the exercise of discretion to direct a retrial followed by a jointtrial. It was imperative for the accused-respondents to prove that theseparate trials caused a miscarriage of justice. The respondents havenot been able to demonstrate before the Court that separate trials led toa miscarriage of justice. No explanation has been rendered on the aspectof a miscarriage of justice. Though the High Court has in the impugnedjudgment observed that the separate trials in FIR 96 and FIR 187 led toa miscarriage of justice, no analysis has been undertaken to explain thefinding. Moreover, the High Court has only observed that there ‘may’ bea miscarriage of justice. Therefore, quite apart from the individualprejudice to the appellant which has been brought out before the Court,we are clearly of the view that the holding of separate trials was notcontrary to law and that there was no resultant failure of justicedemonstrated to the satisfaction of the High Court.

48. We are conscious of the fact that the State of Punjab is not inappeal before this Court against the retrial which has been ordered bythe High Court. But as a matter of first principle, it is evident that eventhe appellant has been able to establish that a retrial would be a matterof serious prejudice since vital evidence which has been recorded duringthe course of the trial would be obliterated as a result of the death of thewitnesses from the investigating team lead by the appellant. That apart,a retrial will not serve the ends of ensuring that justice is done in aheinous crime alleged to have been perpetrated on the prosecutrix resultingin her suicide.

49. We accordingly allow the appeal and set aside the impugnedjudgment and order of the High Court of Punjab and Haryana dated 20December 2019. Consequently, the entire batch of criminal appeals whichhave been disposed of by the impugned judgment and order shall standrestored to the file of the High Court for disposal afresh on merits. Weclarify that nothing contained in this judgment shall be construed as theexpression of any opinion on the merits of the appeals which are to beheard and decided by the High Court.

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610SUPREME COURT REPORTS[2021] 13 S.C.R.