Criminal Procedure Code

Re-Trial

The appellate Court could order a retrial on the ground of miscarriage of justice

1. Only in 'exceptional' circumstances to avert a miscarriage of justice.
2. In the absence of jurisdiction;
3. The trial has been vitiated by an illegality or irregularity based on a misconception of the nature of the proceedings.
4. The prosecutor has been disabled or prevented from adducing evidence as regards the nature of the charge or the accused has been disabled or prevented from adducing evidence against the nature of the charge, resulting in the trial being rendered a farce, sham or charade.
5. Mere lapses in the investigation are not sufficient to warrant a direction for retrial. Only if the lapses in the investigation are so grave so as to prejudice the rights of the parties.

If a appellate court ordered for re-trial, the evidence and record of the previous trial is completely wiped out.

In Ukha Kolhe Versus State of Maharashtra and Nasib Singh versus State of Punjab and Another the Hon'ble Supreme Court summarized the principles governing re-trial is reiterated as follows:

The appellate court may direct a re-trial only in "exceptional" circumstances to avert a miscarriage of justice. Mere lapses in the investigation are not sufficient to warrant a direction for retrial. Only if the lapses are so grave so as to prejudice the rights of the parties, can a re-trial be directed. A determination of whether "shoddy" investigation /trial has prejudiced the party, must be based on the facts of each case pursuant to a thorough reading of the evidence. It is not sufficient if the accused/prosecution makes a facial argument that there has been a miscarriage of justice warranting a re-trial. It is incumbent on the appellate court directing a re-trial to provide a reasoned order on the nature of the miscarriage of justice caused with reference to the evidence and investigatory process. If a matter is directed for re-trial, the evidence and record of the previous trial is completely wiped out.

The following are some instances, not intended to be exhaustive, of when the Court could order a re-trial on the ground of miscarriage of justice:

The hon'ble High Court of Maharastra in KAILAS VERSUS THE STATE OF MAHARASHTRA, ordered a re-trial citing following reasons

1. Video-recording of search and seizure operation was the best evidence, but the same was not converted into admissible evidence :
   1. video was not played while recording statement of each witness so as to enable the witness to explain the video in his own words in his deposition.
   2. no transcript of video was prepared.
   3. The video played in the court could not be understood without the explanatory statment of witnesses of that video.
2. The Chemical Examiner / Analyst (for short CA) was not produced as a witness.
3. The prosecutor did not produce remnant samples received from the office of Chemical Analyst (CA).
4. The prosecutor did not produce the representative samples drawn at the time of the seizure from the spot as well as drawn in presence of the learned Magistrate at the time of making the inventory.

The Hon'ble Supreme Court has discussed validity of the reasons assigned for re-trial in KAILAS VERSUS THE STATE OF MAHARASHTRA by the High Court of Maharastra

1. Although the author of the video SW No.2 has deposed that he recorded the video and gave a certificate, as contemplated under subsection (4) of Section 65B of the Evidence Act, to make the compact disc (CD) admissible in evidence.

   The Hon'ble High Court of Maharastra opined that the video would become relevant only if it is played during deposition of each witness so that the witness could explain its contents in his own words resulting in a transcript of the video.

   Interestingly, the Hon'ble Supreme Court held a strange and unacceptable reason that the CD is an electronic record and once the requirement of Section 65B is fulfilled it becomes an admissible as piece of evidence, like a document, and the video recorded therein is akin to contents of a document which can be seen and heard to enable the Court to draw appropriate inferences.

   "However, it is not the requirement of law that the contents of the video would become admissible only if it is reduced to a transcript in the words of a witness who created the video or is noticed in the video."

   Besides in this case the search and seizure operation was sought to be proved by oral evidence of witnesses. The video, therefore, was perhaps to corroborate the oral testimony. Even the judgment of the trial court makes it clear that the video was played in court in the presence of all accused as well as both sides counsels and the presiding officer, upon seeing the video, could spot and confirm the presence of witnesses as well as the accused at the time of search and seizure.

   Further, Besides, the power to take additional evidence is there under Section 391 of CrPC. However, the High Court of Maharashtra has ordered re-trial to merely understand the video can not be considered as a justification to order a re-trial and fresh recording of evidence. So, in the opinion of Hon'ble Supreme Court of India the reason assigned by the High Court of Maharashtra for ordering a re-trial is totally misconceived and baseless.

2. The consequences of non production of Chemical Examiner / Analyst (for short CA) as a witness.

   As far as non-production of Chemical Examiner as a witness is concerned no objection was raised under Section 293 of CrPC in respect of exhibiting the Chemical Examiner's report. Under these circumstances considering the reason, that the Chemical Examiner / Analyst was not produced as a witness, by the Hon'ble High Court of Maharastra for ordering re-trial is not sustainable.

3. Why production of the seized contraband may be important and in what manner recovery of contraband may be proved.

   The Hon'ble Supreme rejects the observations relaying on Section 465 CrPC to hold that non-production of the material object was a mere procedural irregularity and did not cause prejudice to the accused in Jitendra and Another v. State of M. P.

   In Ashok v. State of M.P. the Hon'ble Supreme Court emphasized the necessity of maintaining proper custody of the seized contraband from the date of its seizure till obtaining of FSL report including production in Court. Because for the prosecution to succeed, it is imperative that there must be evidence to connect the forensic report with the substance that was seized from the possession of the accused.

   In Noor Aga v. State of Punjab13, The prosecution have not produced the physical evidence of the Contraband Material seizure before the court, no conviction could have been based thereupon. On the side of the prosecution, submission was that the contraband was destroyed under orders of the Magistrate. Further, there was no cogent evidence that guidelines in respect of destruction of contraband articles were followed.

   “96. Last but not the least, physical evidence relating to three samples taken from the bulk amount of heroin was also not produced. Even if it is accepted for the sake of argument that the bulk quantity was destroyed, the samples were essential to be produced and proved as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under Section 52-A of the Act.”