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Retrial Can Be Directed In 'Exceptional' Circumstances Only To Avert Miscarriage Of Justice: Supreme Court Formulates Principles In Nasib Singh V State Of Punjab & Ors

Bidisha Ghoshal ,
  23 November 2022       Share Bookmark

Court :
Hon’ble Supreme Court of India
Brief :

Citation :
Criminal Appeal No 13282/2009

CAUSE TITLE:
Nasib Singh Vs State of Punjab & Ors.

DATE OF ORDER:
25th July 2012.

JUDGE(S):
Hon’ble Dr.Chandrachud, B.V. Nagarathna.

PARTIES:
Petitioner: Nasib Singh.
Respondent: State of Punjab & Ors.

SUBJECT

The Hon’ble Supreme Court has laid down an essential concept for avoiding miscarriage of justice. It gives authority to the Court to initiate re-trial, Joint Trial and Separate Trial. But this a re-trial can harm the supreme validity of the Constitution. If it is repeatedly used by the “justice” giving authority of our country then people will lose confidence over the power of law. Therefore keeping this is mind, it has been strictly laid down that re-trial and joint trial can be held only in certain “exceptional cases”.

IMPORTANT PROVISIONS

Code of Criminal Procedure

  • Section 223- The power to charge people jointly.
  • Section 386- The power of appellate Court to reverse or alter the decision which is already given.

India Penal Code

  • Section 328- Causing hurt by means of poison.
  • Section 363- Punishment for kidnapping.
  • Section 366A- Procuration of minor girl.
  • Section 376 (2) (g)- Punishment for gang rape.

BRIEF FACTS

  • On 13 November 2012, the prosecutor is purported to have been kidnapped, ravished, forcibly intoxicated and repeatedly raped by Balwinder Singh and Gurprit Singh.
  • On 27 November 2012, the prosecutor got her statement recorded with Sub-Inspector In charge Nasib Singh (the appellant) of the Police Post at Badshahpur. First Information Report was registered at Ghagga, Badshahpur under Sections 363, 366A, 376, 328 and 34 of the Indian Penal Code.
  • It is contended by the execution that though the appellant entered information from the prosecutor, but neither a proper investigation was not conducted nor was any action taken against the wrong-doers.
  • On 26 December 2012, the prosecutor committed suicide leaving behind a note where she named Balwinder Singh, Gurpeet Singh and Shinderpal Kaur to be responsible behind her decision to end her life.
  • Harvinder Kaur, the cousin of the victim filed a FIR at PS Ghagga against the appellant(SI Nasib Singh) for abetting the suicide of the prosecutor.
  • Immediately to enquire into the standard of inspection conducted by the appellant in the gang rape case, a special investigation team was formed and appointed by the ADGP (Crime). The appellant was discharged from the Police Department on 27 December 2012 but an appeal was proposed and he was again restored to the service.
  • The Additional Sessions Judge of Patiala released Nasib Singh (appeallant) on the ground that there was nothing was found in the record to prove that he had conducted an alloyed investigation.
  • In total, nine appeals were filed before the High Court against the judgement given on 29 November 2014 and the conviction of the accused. But all of these appeals were disposed of by the High Court with a common impugned order on 20 December 2019.
  • The High Court remitted the judgments of conviction and vindication dated 29 November 2014 and 29 January 2015 of the Additional Sessions Judge directed that trials be conjoined and tried together (Section 223 CrPC).
  • Now the case is that the prosecutor has committed suicide because of the rape committed by the accused. It was an apparent failure of justice and therefore, the High Court stated that there is a necessity to remit the case back for retrial. The following two cases were thereby remitted:
  1. The judgment of conviction and order of judgement dated 29 November 2014 of the Additional Sessions Judge, Patiala arising out of the FIR dated 27 November 2012; and
  2. The judgment of conviction and order of judgement dated 29 January 2015 of the Additional Sessions Judge, Patiala arising out of FIR dated 31 December 2012.

QUESTIONS RAISED

  • Whether the negligence of the appellate authority has been so harmful that it can prejudice the rights of the appellant?

ARGUMENTS ADVANCED BY THE APPELLANT

  • Both sets of judgements (one dated on 29 November 2014 accusing the gang rape case and the other dated on 29 January 2015 proclaiming the abetment of suicide) were interpreted as one in the same court by the same judge. It was also noted that the appellant was acquitted in both the Sessions Trials in the Patiala Court and no appeal was filed by the State against the same. The appellant was also dismissed from the service on 27 December 2012. But again,an appeal was made and his service was restored.
  • The appellant jury claimed that the order of the High Court to quash the previous judgement and direct a fresh trial has caused serious prejudice on his part because the order of his acquittal was completely kept aside. No proper cause or justification was given as to why such action was ordered by the Court and in fact the evaluation made on the merits of the appellant was also not considered.
  • The two crucial witnesses- Head Constable Ranja Ram (PW 20) and Head Constable Gurjeet Singh (PW 17), who were a part of the investing team with the appellant have died. Their depositions in regard to the nature of the investigation conducted by the appellant was an important proof for this case which has been totally wiped out.
  • Hence, fresh evidence has to be adducted at the retrial which would be very much troublesome and difficult for the appellant to represent and prove his innocence.
  • The appellant is currently 65 years old and ade novo trial could cause severe distress to him.

ARGUMENTS ADVANCED BY THE RESPONDENT

  • In the present case, the High Court has ordered to apply the provisions of Section 223 (d) of CrPc under which the persons who are convicted of different offences committed in the course of same transaction can be charged and tried together.
  • Even though the State has not filed an appeal before the Court against the judgement given by the High Court, but we cannot escape the fact that the High Court has committed an error in ordering a re-trial and removing the conviction and the sentence imposed previously.
  • As a result of this impugned order given by the High Court, there would be a serious miscarriage of justice. All the evidence has been already been verified and recorded during both of the Sessions Trials, the accused were sentenced accordingly and the order was given. Going through the entire process again after so many years would only be a wastage of time and energy of the Court.

ANALYSIS BY THE COURT

  • In Ukha Kolhe v. State of Maharashtra [1963 AIR 1531], the judgement of the Constitution Bench dealt with this kind of issue extensively. The above-mentioned case pointed out some crucial points which must be satisfied before the Appellate Court before granting the permission for retrial. Those are-
  1. The court trying the proceeding had no jurisdiction;
  2. The trial was vitiated by serious illegalities and irregularities or on account of amisconceptionofthenatureoftheproceedingsasaresultofwhichnorealtrialwas conducted.

This case also listed out to wipe off all the previous records from the earlier proceedings and conduct a fresh proceeding in the cases of retrial.

  • Even in the case of Gangula Ashok v. State of Andhra Pradesh [2000 Cri LJ 819: AIR 2000 SC 740], the Supreme Court stated that the Appellate Court should grant retrial only when there is a “failure of justice”. The Court must not ignore the huge pendency of cases in the trial court and it should be conscious of the fact that this action would replay the whole laborious exercise. A de novo trial should be the last resort to remove “miscarriage of justice” and should only be used when it becomes desperately indispensable.
  • In the present case, the High Court was well conscious of the fact that the appellant Nasib Singh has been tried together with the other appellants and also acquitted during both the Sessions Court Trials.
  • Now after so many years it may happen that the evidence which was recorded during both the trials at that time might not exist in the present period. This will be unfair on the part of that party if previously the judgement was given in his favor. The appellant has set up a plea regarding the same and ordered that a retrial at this stage would be a matter of serious prejudice on his part. This is because the two important witnesses who gave their evidence in regard to the manner in which the investigation was conducted have died.
  • It was also stated by the appellant that with a lapse of over 7 years since the date of the judgement given, a retrial would not advance the cause of justice but would result in a serious degradation of the judicial system.
  • Looking on the other side, the respondents have failed to prove that the conduct of separate trials caused a miscarriage of justice. No proper explanation has been presented before the Court by them. Moreover, the High Court has observed that there “may” be a miscarriage of justice. Therefore, there is no clarity but only an assumption made by the High Court.
  • This very assumption should be cleared and the retrial would definitely ensure justice to the heinous crime committed by the perpetrator. Hence, the Supreme Court granted the appeal for retrial and quashed the judgement served by the High Court of Punjab and Haryana.

CONCLUSION

In India, the rules of rape is strict but stringent as it ignores the emotional repercussions of the victim1. The local complainant authority for the law enforcement system is also corrupted. It has the power to tamper and switch the documents of the innocent thereby proving him guilty2. Therefore it is the duty of the judiciary to serve justice in such a way that it satisfies the respect and dignity of an individual. In this case, a retrial was very much needed as the victim gave up her life due to the incident. This case also established “reconsideration”, a crucial viewpoint of the judicial system. But if it is used repeatedly then it will disrupt the position and value of the judiciary. Therefore this tool must be used in extremely important cases and the judiciary should better prevent itself from using it at all.

Click here to download the original copy of the judgement

Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE

 
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