Allahabad High Court
Chhotai And 4 Others vs State Of U.P. on 23 August, 2023
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Neutral Citation No. - 2023:AHC:173776-DB Court No. - 67 Case :- CRIMINAL APPEAL No. - 234 of 2023 Appellant :- Chhotai And 4 Others Respondent :- State of U.P. Counsel for Appellant :- Sati Shanker Tripathi,A.K. Mishra,Mohd Haider Counsel for Respondent :- G.A. Hon'ble Rahul Chaturvedi,J.
Hon'ble Mohd. Azhar Husain Idrisi,J.
1. Heard Sri A.K. Mishra, Sri Sati Shanker Tripathi, learned counsel for the appellants and learned A.G.A. for the State and perused the record.
2. Learned AGA submits that he has filed counter affidavit on 30.01.2023.
3. Learned counsel for the appellants candidly declined to file any rejoinder affidavit to the counter affidavit filed by the State and requested the Court to decide the case on merits.
4. This appeal is preferred by the appellants, namely,(i) Chhotai son of Panchu, (ii) Yogesh Kumar son of Rajendra Prasad, (iii) Shivdhari Pasi son of Panchu, (iv) Budhani son of Panchu, and (v) Rajendra Prasad son of Panchu, all resident of village Akorha, P.S. Oonjh, District Bhadohi, who are languishing in jail since 19.11.2022 pursuant to the judgment and order passed by Additional Sessions Judge/ Special Judge (SC/ST Act), Court No.II, Bhadohi, Gyanpur while deciding the S.T. No. 118 of 2017 (State Vs. Chhotai and others) arising out of case crime no.43 of 2016, under Section 302 IPC, Police Station-Oonjh, District-Bhadohi (Gyanpur), convicting and sentencing the appellants under Section 302 IPC for life imprisonment and a fine of Rs. 25,000/ each and in case of default, one year additional rigorous imprisonment were awarded to the appellants.
5. Learned counsel for the appellants has raised a purely question of law challenging the legality and authenticity of the impugned judgment & conviction order passed by the learned trial court. Responding to the submissions advanced by learned counsel for the appellant that, the learned trial judge has given complete go by to the established principles of law and the procedure, resulting into a grave miscarriage and failure of justice to the appellants. The procedure adopted by the learned trial judge is not only fallacious and contains number of pit falls, against the principles of natural justice, which is against cardinal principles of Code of Criminal Procedure.
6. Before scrutinizing the legality and validity of the impugned judgment, it is imperative to give a bird's eye view to the factual aspect of the issue to appreciate the controversy involved in its correct perspective.
FACTUAL MATRIX OF THE CASE
7. The aforesaid trial started rolling after submission of charge sheet by the police in case crime no. 43 of 2016 under Section 306 IPC, P.S. Oonjh, District Bhadohi.
8. Submission advanced by the learned counsel for the appellants is that, one Behari Pasi son of Dev Saran Pasi of P.S. Oonjh, Bhadohi on 20.03.2016 along with his brother Lalloo were going to irrigate his field around 11.00 in the night, all of sudden under the mango tree they heard some unusual noise and in the light of the torch, they have seen that their son Jai Prakash after killing him were trying to hang his dead body over the tree. In this Yogesh Kumar, Rajendra Prasad, Budhani, Chhotai, Shivdhari all are sons Panchu were involved in this transaction. When inquired from them then they told that the deceased was in the love with their daughter Mala and that is why, they have eliminated him. After the incident all of them fled away from the sight. The informant and his brother went to the spot and have seen that Jai Prakash was died and his dead body was taken down from the tree.
9. On this written tehrir, on 21.03.2016 a case crime no. 43 of 2016 was registered under Section 147 and 302 IPC against aforesaid named accused appellants but the police after conducting the thorough probe have submitted a report under Section 173(2) Cr.P.C. in Section 306 IPC against accused-appellants.
10. On 07.07.2017, the learned trial court after committal of the case have framed the charges under Section 306 IPC only. Thereafter inordinate delay of almost more than five years of the trial on 12.10.2022 prosecution woke up and moved an application for amending the charge. An alternative charge under Section 302 IPC was framed against named accused appellants.
It is urged by the learned counsel for the appellants that the entire trial was conducted, keeping in view Section 306 IPC but at the fag end of the trial, Section 302 IPC was inserted among array of the Sections. Surprisingly, the appellants were eventually convicted without adhering the mandatory provision under Sections 216 & 217 Cr.P.C. by the learned trial judge, causing grave miscarriage of justice to the appellants.
11. From the judgement impugned, as many as eight witnesses and eleven documents were produced, which were exhibited to establish the case of the prosecution. From the judgement, it was urged that the accused appellants that in 'furtherance of the common object' they have eliminated the deceased and hanged his dead body over the tree with the intent to give colour of suicide. This incident was witnessed by the informant Behari Pasi and his brother Lalloo, who have given ocular testimony that the deceased was nurturing a tender relationship with the daughter of Chhotai, namely, Mala and in order to save the dignity and honour of his family, all the accused appellants wiped off the deceased in the name of "honour killing".
12. The post mortem was conducted by Dr. Abhay Singh but on account of his demise during trial, the post mortem report was proved by PW-5 Udai Narain Verma, Pharmacist who identified the post mortem report, its contents and the signature of late Dr. Abhay Singh. As per the post mortem report, there is a "ligature mark around upper neck around whole enterior neck and upto left mastoid process and right side towards posterior side of neck up to mid jaw".
However, the doctor has opined the immediate cause of the death of the deceased is as asphyxia on account of ante mortem (HANGING).
13. Fact remains, that the charge sheet was submitted under Section 306 IPC and the original charge were framed on 07.07.2017. The entire trial too was conducted keeping in view section 306 IPC upto the stage of recording of statement under Section 313 Cr.P.C., but all of sudden, an application was moved by the prosecution, resultantly, Section 302 IPC was added as alternative charge, as surprise to the accused-appellants.
14. Though, the case history of the case is quite lengthy, having regard to the aspect which, we intent to focus on and the fact that on that aspect only, this appeal warrants to succeeds, it is not necessary to burden the judgment with unnecessary factual details, we would therefore, be eschewing those facts, which are irrelevant for our purpose and would be taking record of such facts which would be relevant to the issue, which we intent to focus.
LEGAL ASPECT OF THE ISSUE
15. (I) The basic and moot question of law is for the determination in the present case is that altered or added charges if causing prejudice to the accused, trial has to proceed by terming the altered or added charges as original charge. If altered or added charges altogether new one the new trial is insisted in order to take care of such anticipated prejudice to the appellants, it is incumbent upon the prosecution to recall witnesses, examine them in the context of charge under Section 302 IPC and allow accused person to cross examine those witnesses.
(II) If the charges is altered by new charge prejudicing the accused and the de-novo trial is not conducted denying the opportunity of cross examination to the accused, the entire proceeding including the conviction would be vitiated.
(III) Charges under Section 306 and 302 IPC cannot stand together.
16. The prosecution has laid his evidence keeping in view to establish the guilt of the accused appellants under Section 306 IPC and when the matter was ripe for final arguments, after recording the statement of the accused appellants under Section 313 Cr.P.C., an application 86Kha was filed by the prosecution and its objection 89Kha was moved by the defense. On 01.10.2022, learned Sessions Judge, SC/ST Act, Court No.2 Bhadohi Gyanpur in S.T. No. 118 of 2017 (State Vs. Chhotai and others) under Section 306 IPC on 01.10.2022 have allowed the application 86Kha directing to add/alter the charge to Section 302 IPC. The Court has occasion to go through the aforesaid interlocutory order 01.10.2022 in which it has been clearly mentioned that PW-1 and PW-2 in their statement and in their cross examination they have not even whispered that the deceased Jai Prakash committed suicide. However, the I.O. of the case, mainly relying upon the opinion of the doctor that the cause of death is on account of asphyxia as a result of ante mortem hanging and have submitted charge sheet under Section 306 IPC.
The prosecution at no stage has ever protested on the said charge sheet and the accused appellants were bailed from the Hon'ble High Court under Section 306 IPC. Even at this stage, there was no objection or protest by the prosecution that it is not a case of Section 306 IPC but Section 302 IPC. Not only this as mentioned above on 07.07.2017 charges under Section 306 IPC were framed and explained to appellants. Virtually, during the entire trial the prosecution has maintained its stoic silence and participated to prove the charge against accused- appellants only under Section 306 IPC.
In the order dated 01.10.2022 it has been clearly mentioned that, the record of the case is fixed for final arguments on the merit of the case and at the fag end the aforesaid application 86Kha has been moved by the prosecution for altering the charge and vide order dated 01.10.2022 the application no. 86Kha stands allowed, with the direction to frame an alternative charge under Section 302 IPC. Consequently, on 12.10.2022, the Special Judge, SC/ST Act, Court No.2 Bhadohi Gyanpur has framed the charge under Section 302 IPC for the incident said to have been taken place on 20.03.2016.
17. Interestingly on the same day i.e. on 12.10.2022 yet another order was passed framing an alternative charge of Section 302 IPC and accordingly, same was done. While passing the aforesaid order, it has been mentioned by the learned trial judge that since all the prosecution witnesses has been examined, even statements under Section 313 Cr.P.C. were recorded and the case is fixed for final arguments, if the accused appellants want to cross examine the witnesses on the newly framed charge, they may do so.
18. The relevant extract of order dated 12.10.2022 passed by Special Judge, SC/ST Act/ Additional Sessions Judge, Court No.2, Bhadohi, Gyanpur is quoted herein below:-
"जैसा कि अभियोजन की ओर समस्त साक्षियों को परीक्षित कराया जा चूका है और अभियुक्तगण का बयान अंतर्गत धारा ३१३ द० प० सं० अंकित हो चुका है। पत्रावली बहस में चल रही है। अभियुक्तगण यदि किसी साक्षी से नवीन वैकल्पिक आरोप के सन्दर्भ में जिरह करना चाहे तो उक्त हेतु स्वतंत्र है। पत्रावली वास्ते बहस हेतु दिनांक १९.१०. २०२२ को पेश हो। "
From the reading of the above extract, it is urged by the learned counsel that it seems certain amount of concession & discount was given by the learned trial judge to complete certain formality of cross examination from few of the witnesses. In this regard, it is asserted that the provision of Section 216 & 217 Cr.P.C. are not simply formality but mandate of law, which has to complied with in its letter & spirit.
19. At this juncture, it is imperative to spell out Section 216 & 217 Cr.P.C., which are herein under for ready reference :-
" 216. Court may alter charge-
(1) Any Court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
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217. Recall of witnesses when charge altered. Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed-
(a) to recall or re- summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re- examine such witness for the purpose of vexation or delay or for defeating the ends of justice;
(b) also to call any further witness whom the Court may think to be material."
20. As mentioned above that at the fag end of the trial the learned trial have brushed aside the objection of the defense and have framed ALTERNATIVE CHARGE under Section 302 IPC. At this juncture all the prosecution witnesses were already examined, statement under Section 313 Cr.P.C. were recorded and matter was fixed for final submission. It is submitted that eventually all the five accused persons named above were convicted under Section 302 IPC i.e. alternative charge without following above mentioned mandatory mandate of law.
21. The appellants filed this appeal against the said conviction order, taking the specific plea to the effect that they could not have been any conviction under Section 302 IPC. In this regard, it has been pleaded that the alternative charge under Section 302 IPC was wrongly framed and appellants can not be convicted without adhering the procedure under Sections 216 & 217 Cr.P.C. and therefore, the entire trial in so far as the conviction under Section 302 IPC is concerned stood vitiated.
22. Hon'ble Apex Court in its judgement in the case of R.Rachaiah Vs. Home Secretary, Banglore reported in (2017)3SCC(Crl.)710=2016 12SCC172, while dealing with the exact proposition of law have opined :-
"The bare reading of Section 216 reveals that though it is permissible for any Court to alter or add to any charge at any time before judgment is pronounced, certain safeguards, looking into the interest of the accused person who is charged with the additional charge or with the alteration of the additional charge, are also provided specifically under sub-sections (3) and 4 of Section 216 of the Code. Sub-section(3), in no uncertain term, stipulates that with the alteration or addition to a charge if any prejudice is going to be caused to the accused in his defence or the prosecutor in the conduct of the case, the Court has to proceed with the trial as if it altered or added the original charge by terming the additional or alternative charge as original charge. The clear message is that it is to be treated as charge made for the first time and trial has to proceed from that stage. This position becomes further clear from the bare reading of sub-section(4) of Section 216 of the Code which empowers the Court, in such a situation, to either direct a new trial or adjourn the trial for such period as may be necessary. A new trial is insisted if the charge is altogether different and distinct."
Even if the charge may be of same species, the provision for adjourning the trial is made to give sufficient opportunity to the accused to prepare and defend himself. It is, in the same process, Section 217 of the Code provides that whenever a charge is altered or added by the Court after the commencement of the trial, the prosecutor as well as the accused shall be allowed to recall or re-summon or examine any witnesses who have already been examined with reference to such alteration or addition. In such circumstances, the Court is to even allow any further witness which the Court thinks to be material in regard to the altered or additional charge."
23. The accused persons were initially charged for the offence under Section 306 IPC, that is abetting the suicide. Prosecution at no point of time, raised their finger on the charge sheet. The post mortem report of the deceased reveals that that the cause of death asphyxia as a result of hanging. It seems that this was the factor prevail upon the police to file charge sheet under Section 306 IPC. The appellants said to have been aided and abetted the deceased to take this extreme step. Not only this, specific learned trial judge have charged under Section 306 IPC for abetting the suicide were farmed and all the prosecution witnesses were examined and cross examined by the appellants under Section 306 IPC. Obviously when the appellants were charged for an offence under Section 306 IPC, i.e. abetting the suicide, the focus as well as stress in cross examine shall be on that charge alone. But at the fag end of the trial, if the charges were altered with alternative charge with the framing of charge under Section 302 IPC, this gives altogether different complexion and dimension to the prosecution case. Entire texture of the trial gets changed up side down.
24. In a case like present, addition and/or substitution of such charge would bound to create a prejudice to the appellants. Such a charge has to be treated as original charge. In order to take care of the said prejudice, it was incumbent upon the prosecution to recall the witnesses, examined them in the context of the newly framed charge under Section 302 IPC and allow the accused persons to cross examine those witnesses. Nothing of that sort has ever happened.
25. If, we refer the impugned order dated 12.10.2022 in which the learned trial judge have mentioned "abhiyuktgan yadi kisi sakshi se naveen vaikalpik aaroop ke sandarbh me jirah karna chahe to ukt hetu swatantra hai". From this it is evident, that the learned trial judge has tried to give a concession and a discount to the accused appellants, if they want to cross examine any prosecution witnesses of their choice, they can do so. This is not the mandate of the law. When the prosecution is changing the tone, texture and tenure of the case substantially upside down, these concessions and discount won't do. Such type of concession/discount is not contemplated under Section 217 Cr.P.C..
In the present case the farming of charge have been done on 12.10.2022, testimonies of those witnesses were over much prior to that date. Not only this, accused person have got their statement recorded under Section 313 Cr.P.C.. It hardly needs to be demonstrated, that the provision under Section 216 & 217 Cr.P.C. are mandatory in nature, as they not only subserve the requirement of the principles of natural justice but guarantee and important right which is given to the accused persons to defend themselves appropriately by giving them full opportunity. Cross examination of the witnesses in the process is an important facet of this right. Credibility of any witness can establish only after the said witness put to the cross examination by the accused person. No amount of concession or discount by the learned trial judge would replace this valuable right of the accused appellants. The learned trial court is under the legal obligation to open the 'chess board' once again to achieve the object of fair trial. In the instant case, there is no cross examination so far as the alternative charge under Section 302 IPC was ever done and thus we are of the considered opinion that there could not have been any conviction under Section 302 IPC could be passed by learned trial judge while passing the impugned judgment and order of conviction dated 19/22.11.2022 and thus liable to be set aside.
26. Setting aside of a judgment too, is not a remedy in the interest of justice. The accused appellants are charge sheeted accused of an offence and the justice demands, that they must be put to re-trial from the stage of framing of alternative charges under Section 302 IPC. The earlier conviction order is set aside on the technical grounds but in all fairness the accused appellants must face the trial on the alternative charge. This is mandate of law and has to be carried out in its letter and spirit. In this regard, the remedy is under Section 386 Cr.P.C. which empowers to the appellate court to direct/de-novo trial. Before coming to that Section 386 Cr.P.C., which reads thus:-
"386. Power of the Appellate Court. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-
(a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
(b) in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the Same;
(c) in an appeal for enhancement of sentence-
(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re- tried by a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such order;
(e) make any amendment or any consequential or incidental order that may be just or proper; Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal."
27. Since, we have already quashed and set aside the impugned judgment and order of conviction keeping in view the serious procedural flaw and fallacy necessitating re-trial of charge sheeted accused appellants. Such fallacy as pointed above, have resulted into serious miscarriage of justice for appellants and therefore, we are of the considered opinion that the matter should be remanded back for re-trial. The High Court being the first appellate court is duty bound to examine the evidence and arrive at an independent finding based on appraisal of such evidence and examine whether such lapses actually affected the prosecution case or such lapses have actually resulted into failure of justice. The circumstances that are existing, warrants the re-trial of the accused-appellants. The trial undertaken by the court, having no jurisdiction or trial was vitiated by serious illegality or irregularity on account of misconception of nature of proceedings or that irregularity has resulted into miscarriage of justice to the accused-appellants.
28. In Section 386 Cr.P.C. deals with the powers of appellate court. As per Section 386(b) Cr.P.C. in an appeal from conviction the appellate court may; (i) reverse the finding and sentence and acquit or discharge the accused or order him to re-tried by the court of competent jurisdiction subordinate to such appellate court or committed for trial or (ii) alter the finding, maintaining the sentence or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence but not so as to enhance the same.
Learned counsel for the appellants has relied upon the judgement of Hon'ble Apex Court in the case of Ajay Kumar Ghoshal and others Vs. State of Bihar and another reported in (2017)12 SCC 699.
29. The word "RE-TRIAL" is used under Section 386(b)(i) Cr.P.C., the power confers by this clause is to be exercise only in the exceptional cases, where the appellate court is satisfied that omission or irregularity has occasioned 'failure of justice'. The circumstances that should exist for warranting for re-trial must be such that the trial was undertaken by court having no jurisdiction or the trial was vitiated by serious illegality or irregularity on account of misconception of the nature of proceeding or such trial have resulted into serious failure of justice to the appellant. An order for re-trial may be passed in cases where the original trial is not satisfactory for some serious procedural lapses resulted miscarriage of justice to appellants such as wrong admission or wrong rejection of the evidences or the court has refused to hear certain witnesses who were suppose to be heard or adding or substituting the 'charge' in this regard to graver section of the offences, without adhering the mandatory procedure.
30. We have used the phrase a 'failure of justice' what is meant by 'failure of justice' occasion on account of such error, omission or irregularity? Hon'ble Apex Court Shamnsaheb M. Multtani Vs. State of Kanataka reported in 2001(1)SCC (Crl.) 358 opined that:-
"We often hear about 'failure of justice' and quite often submission in the criminal court is accentuated with the said expression. Perhaps it is true pliable or facile and expression which could be fitted in any situation of the case. The criminal court particularly a superior court should make those examination to ascertain whether there was a failure of justice or whether it is only a camouflage."
Adding graver section of the offence at the fag end of the trial but not providing reasonable opportunity as contemplated under Section 216 & 217 Cr.P.C. would bound to lead 'failure of justice to the accused appellants. Facts of the present case, the appellants would be faced with serious prejudice, if the entire trial is not re-opened and they were given a fair amount of opportunity to cross examine the witnesses of prosecution. This is not a camouflage but the need of the time.
31. De-novo trial means "new trial" ordered by appellate court in exceptional cases when the original trial court failed to make a determination in a manner dictated by law. The trial court is required to conduct a fresh by court, as if there had not been a trial at first instance. Undoubtedly, the appellate court has power to direct the lower court to hold a "de-novo" trial. But the question is when such power should be exercise. As stated in the judgement of Ukha Kolhe Vs. State of Maharashtra reported in AIR 1963 (SC) 1531 held that :-
"An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate Court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate Court deems it 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 exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons."
32. In yet another case State of M.P. Vs. Bhooraji reported in 2001 SCC (Crl.) 1373 :-
"While dealing with question whether the High Court should have quash the proceeding only on account of declaration of a legal position made by the Supreme Court concerning the procedural aspect about the cases involving offences under SC/ST Act, Hon'ble Apex Court has stated that a de-novo trial should be a last resort and that too only when such court become desperately indispensable. It should be a limited to extreme exigency to avert failure of justice."
33. In Zahira Habibullah H. Sheikh Vs. State of Gujrat (Best Bakery Case) reported in 2004 SCC (Crl.) 999, the Supreme Court was convinced that the witnesses were threatened to keep themselves away from court and in such circumstances of the case, not only the court directed to have a de-novo trial but made further directions for appointment of a new prosecutor and retrial was directed to be held out of the State of Gujrat. Though it was an exceptional case under the extra ordinary circumstances.
34. We are faced with yet another very common phrases " the 'speedy trial' and 'fair trial' to a person accused of a crime and after referring a catena of decisions an observations that are guiding factor for re-trial must be a demand of justice." In the case of Mohd. Hussain Vs. State of NCT Delhi reported in 2012 (3) SCC (Crl.) 1139, the Hon'ble opined in paragraph 41 and 42 of the judgement which is quoted herein below :-
" 41.-'Speedy trial' and 'fair trial' to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused's right of fair trial. Unlike the accused's right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning the accused's right to speedy trial have to be weighed vis-à-vis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social impact and societal needs must be weighed along with the right of an accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end. These principles must apply as well when the appeal court is confronted with the question whether or not retrial of an accused should be ordered.
42. The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the accused under Section 386 of the Code. That is clear from the bare language of Section 386(b). Though such power exists, it should not be exercised in a routine manner. A 'de novo trial' or retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice. Obviously, the exercise of power of retrial underSection 386(b) of the Code, will depend on the facts and circumstances of each case for which no strait jacket formula can be formulated but the appeal court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked."
35. The language used under Section 386 (b) Cr.P.C. permits for re-trial of an accused though should not be exercise in a routine manner, it should be ordered in the exceptional and extraordinary circumstances only when that as per the appellate court's opinion that such course becomes indispensable to avert the failure of justice. A "re-trial" is not a second trial, it is continuation of the same trial and same prosecution. But as mentioned above, the guiding factor of re-trial must always be for the demand of justice. Obviously, the exercise of power for 're-trial' under Section 386(b) Cr.P.C. of the court which depends upon the facts and circumstances of each case which no steal jacketed formulae can be formulated but the appellate court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seeks protection of law do not loose hope in the legal system and the interest of society are not altogether over looked, meaning thereby fair trial and speedy trial must go hand-in-hand for an orderly society.
36. As we have already set aside and quashed the impugned order and judgment of conviction, under challenge, in the earlier part of the judgment by giving a detailed reasons, i.e. by not adhering the mandatory procedure lay down in Sections 216 and 217 Cr.P.C. the accused appellants have suffered has caused a serious prejudice. They were taken by surprise by altering/substituting Section 302 IPC in place of Section 306 IPC and thereafter a concession and discount was granted by learned trial court, that defense may cross examine any of the witnesses, if they so chooses. This concession or discount is an eye wash and a false pretext so as to justify the order of conviction under Section 302 IPC. They have taken a back by pasting a fresh charge under Section 302 IPC in place of Section 306 IPC, such an hide and seek practice is unknown and oblivion to the criminal justice dispensation system. No accused should be taken by surprise or giving a certain concession or discount to carry out the cross examination, if any. But at the same time the accused appellants who are the charge sheeted accused cannot be let loose without being put to trial.
37. For the foregoing reasons the instant criminal appeal is allowed, the impugned judgment and order dated 19/22.11.2022 passed by Additional Sessions Judge/ Special Judge, SC/ST Act, Court No.2, Bhadohi,Gyanpur while deciding the S.T. No. 118 of 2017 (State Vs. Chhotai and others) arising out of case crime no. 43 of 2016, P.S. Oonjh, District Bhadohi, Gyanpur is hereby quashed and set aside with the following directions:-
(i) The matter is remanded back to the trial court to start a fresh trial from the stage of framing the additional charge under Section 302 IPC in view of the observation made above. The accused appellants after the recording the depositions of the witnesses of the prosecution, the accused appellants are required to cross examined them and the trial court is directed to make all sincere effort and to have a day to day hearing (if possible) strictly adhering the provision of Section 309 Cr.P.C. and make all sincere efforts to conclude the trial by 31.03.2024.
(ii) Since the appellants are in jail since 19.11.2022, they are hereby directed to be released on bail in S.T. No. 118 of 2017 (State Vs. Chhotai and others) arising out of case crime no.43 of 2016, under Section 302 IPC, Police Station-Oonjh, District-Bhadohi (Gyanpur), on their furnishing a personal bond and two sureties (one should be family member) each in the like amount to the satisfaction of the court concerned.
(iii) In addition to this, all the accused appellants would give a written undertaking to learned trial court within a week from their release on bail that they would remain present in the court on the framing and explaining those 'charges' to them by the learned trial court. The trial court would re-visit the entire material on record once again so as to satisfied them that there is sufficient material on record to charge the accused appellants under Section 302 IPC. The accused appellants are under the legal obligation to remain present in the court on the framing of charge, at the stage of Section 313 Cr.P.C. and in addition to this, as and when their presence is required by learned trial judge during trial. Any lapses on the part of the accused appellants while adhering above mentioned conditions would warrant serious repercussion including the cancellation of their bail bonds and taking them into custody by the trial court itself after recording its reasons.
38.. Consequently, the present criminal appeal stands allowed and the judgment and order is hereby quashed and the matter is remanded back to the court concerned for re-trial under the 'proposed' alternative charge.
Order Date :- 23.08.2023 Abhishek Sri.