Allahabad High Court
Prem Kumar vs State Of U.P. on 7 July, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No.42
CRIMINAL APPEAL No. 453 of 1981
Prem Kumar -------Appellant
Vs
State of Uttar Pradesh -------Respondent
_______________________________________________________
For Appellant : Aman Kumar (Amicus Curiae)
For Respondent/State : Sri Anshuman Singh, AGA _______________________________________________________
Hon'ble Raj Beer Singh, J.
1. The instant criminal appeal has been preferred against the judgment and order dated 19.02.1981 passed by learned VIth Additional Sessions Judge, Kanpur in Session Trial No. 261/M of 1977 (State of U.P. vs. Moti Lal and Ors), under Sections 399, 402 IPC and Section 25(a) and 25(b) Arms Act, P.S. Fazalganj, District Kanpur, whereby accused appellant Prem Kumar has been convicted under Section 25(b) Arms Act and sentenced to one year rigorous imprisonment.
2. Heard Sri Aman Kumar, learned Amicus Curiae for the appellant and Sri Anshuman Singh, learned A.G.A. for the State.
3. At the outset, it may be mentioned that as per report dated 21.12.2019 of District Judge Kanpur Nagar, the record of trial Court pertaining to this case is not traceable. It has also been reported that reconstruction of record is also not possible. This case pertains to an incident dated 31.01.1977, wherein recovery of one knife was shown from the appellant Prem Kumar. This appeal is pending since 1981. In view of the report of the District Judge, Kanpur Nagar it appears that neither reconstruction of the record nor re-trial is possible. In view of all these facts particularly considering the fact that this appeal is pending for the last 39 years. It appears desirable that this appeal be decided finally.
4. It goes without saying that perusal of record of trial court is necessary for disposal of a criminal appeal on merits. In Shyam Deo Pandey Vs. State of Bihar, 1971 (1) SCC 855 the Hon'ble Apex Court said that fulfillment of requirement for availability of record is necessary to enable the court to adjudicate upon the correctness or otherwise of the order or judgment appealed against nor only with reference to the judgment but also with reference to the records which will be the basis on which the judgment is founded. Relevant part of the judgment is extracted as under :
"18. Coming to Section 425, which has already been quoted above, it deals with powers of the Appellate Court in disposing of the appeal on merits. It is obligatory for the Appellate Court to ,send for the record of the case, if it is not already before the Court. This requirement is necessary to be complied with to enable the court to adjudicate upon the correctness or otherwise of the order or judgment appealed against not only with reference to the judgment but also with reference to the records which will be the basis on which the judgment is founded. The correctness or otherwise of the findings recorded in the judgment on the basis of the attack made against the same, cannot be adjudicated upon without reference to the evidence, oral and documentary and other materials relevant for the purpose. The reference to "such record" in "after perusing such record" is to the record of the case sent for by the Appellate Court."
5. In State of U.P. v. Abhai Raj Singh (2004) 4 SCC 6, the Court observed and held as under :
"6. The powers of the appellate court when dealing with an appeal from a conviction are delineated in sub-clauses (I), (ii) and (iii) of clause (b) of section 386 of the code. The appellate court is empowered by section 386 to reverse the finding and sentence and acquit. Therefore, the acquittal is possible when there is reversal of the finding and sentence and acquit. Therefore, the acquittal is possible when there is reversal of the finding and sentence. The appellate court of competent jurisdiction subordinate to the appellate court or committed for trial . For exercise of the powers in cases of first two categories, obviously a finding on merits after consideration of the materials on record is imperative. Where that is not possible because of circumstances like the case at hand i.e. destruction of the records , the proper course for the appellate court would be to direct retrial after reconstruction of the records the same was impossible. If on the other hand, from the copies available with the prosecuting agency or the defence and/or their respective counsel, reconstruction is possible to be made, the said course indicated in sub-clause (i) and (ii). After perusal of the records and hearing the appellant's pleader and Public Prosecutor under section 377 or 378, the exercise of power as indicated above can be resorted to. As was observed in Bani Singh v. State of U.P. (1996) 4 SCC 720 . The plain language of section 385 makes it clear that if the appellate court does not consider the appeal fit for summary dismissal, it must call for the records and section 386 mandates that after record is received, the appellate court may dispose of the appeal after hearing as indicated.
7. A question would further arise as to what happens when reconstruction is not possible. Section 386 empowers the appellate court to order that the case be committed for trial and this power is not circumscribed to cases exclusively triable by the Court of Session.(See State of U.P. v. Shankar AIR 1962 SC1154).
8. It has been the consistent view taken by several High court that when records are destroyed by fire or on account of natural or unnatural calamities reconstruction should be ordered. In Queen Empress v. Khimat Singh 1889 AWN 55 the view taken was that the provisions of section 423(1) of the criminal procedure code,1898(in short " the old code") made it obligatory for the court to obtain and examine the record at the time of hearing. When it was not possible to do so, the only available course was a direction for reconstruction. The said view was reiterated more than six decades back in Sevuaperumal,Re AIR1943 Mad 391(2). The view has been reiterated by several high Courts as well,even thereafter.
9. The High court did not keep the relevant aspects and consideration in view and came to the abrupt conclusion that reconstruction was not possible merely because there was no response from the Session Judge. The order for reconstruction was 1-11-1993 and the judgement of the high court is in Criminal Appeal No. 1970 of 1979 dated 25-2-1994. the order was followed in Criminal Appeal No. 1962 of 1979 disposed of on 16-9-1995. it is not clear as to why the high court did not require the session court to furnish the information about reconstruction of records; and/or itself take initiative by issuing positive directions as to the manner, method and nature of attempts,efforts and exercise to be undertaken to effectively achieve the purpose in the best interests of justice and to avoid ultimately any miscarriage of justice resulting from any lapse,inaction or inappropriate or perfunctory action,in this regard; particularly when no action was taken by the high court to pass necessary orders for about a decade when it received information about destruction of record. The course adopted by the high court, if approved, would encourage dubious persons and detractors of justice by allowing undeserved premium to violators of law by acting hand in glove with those anti-social elements coming to hold sway,behind the screen, in the ordinary and normal course of justice.
10. We , therefore, set aside the order of the high court and remit the matter back for fresh consideration. It is to be noted at this juncture that one of the respondents i.e. om pal has died during the pendency of the appeal before this court .The High court shall direct reconstruction of the records within a period of six months from the date of receipt of our judgment from all available or possible sources with the assistance of the prosecuting agency as well as the defending parties and their respective counsel. If it is possible to have the records reonstructed to enable the high court itself to hear and dispose of the appeals in the manner envisaged under section 386 of the code,rehear the appeals and dispose of the same, on their own merits and in ordering retrial interest of justice could be better served-adopt that course. If only reconstruction is not possible to facilitate the high court to hear and dispose of the appeals and the further course of retrial and fresh adjudication by the sessions court is also rendered impossible due to loss of vitally important basic records- in that case and situation only, the direction given in the impugned judgement shall operate and the matter shall stand closed. The appeals are accordingly disposed of."
6. In Pati Ram & Another Vs. State of U.P., 2010 Cri.L.J. 2767, the Court observed and held as under :
"12. I have given my thoughtful consideration to the rival submissions made by the parties counsel. It is true that another Bench of this Court in the case of Raj Narain Pandey (Supra) has decided the appeal on merit in the absence of lower court record on the basis of the impugned judgement only, but in my considered opinion, the appeal can not be decided on merit in the absence of lower court record. Unless the evidence is available for perusal, in my opinion, the appeal can not be considered and decided on merit merely on the basis of the lower court judgement, as evidence is essentially required to consider the merit of the impugned judgement and merely on the basis of the said judgement, no order on merit can be passed in the appeal.
13. As is evident from the report of IVth Addl. Sessions Judge, Bareilly, no paper of the case is available. In spite of best efforts made by the courts below, the lower court record could not be reconstructed. Since no paper of the case is available, hence there is no possibility of re-trial at this stage after more than thirty years. Therefore, in view of the observations made by the Hon'ble Apex Court in the case of State of U. P. Vs. Abhay Raj Singh (supra) there is no alternative except to acquit the appellants, as hearing of the appeal in accordance with the arrangement made in section 386 cr. p. c. can not be made and retrial also is not possible.
14. Consequently, the appeal is allowed. The impugned judgement and order are set aside and the appellants-accused Pati Ram and Ram Swarup are hereby acquitted of the offence under section 304 read with section 34 ipc for want of trial court record and there being no possibility of retrial."
7. In the instant case, it is apparent that record of the trial Court is not traceable and it has been reported by the District Judge, Kanpur Nagar that even the reconstruction of record is not possible. In view of fact that incident took place 43 years back and record of case is not available, thus, re-trial of case is nearly impossible. Considering the law laid down by Hon'ble Apex Court in case of State of U.P. vs. Abhai Raj Singh (supra) as well as judgment of Division Bench of this Court in case of Laukush and Another vs. State of U.P., 2013(7) RCR (Cri) 493 and Pati Ram & Another vs. State of U.P., 2010 Cri.L.J. 2767, this Court is left with no option but to decide the appeal as per settled law. Hence in view of above stated position of law when record of trial court is not traceable and neither reconstruction is possible nor re-trial the appeal has to be allowed.
8. The appeal is accordingly allowed. The impugned judgment and order of the Trial Court dated 19.02.1981 convicting and sentencing the appellant is hereby set aside and appellant is acquitted of the charge levelled against him. The accused-appellant Prem Kumar is on bail, his personal bond is cancelled and sureties are discharged.
9. Appeal is allowed in above terms.
10. This Court appreciate the assistance rendered by Sri Aman Kumar, learned Amicus Curiae. He shall be entitled to get Rs. 2500/- from State Government, as his remuneration for assisting the Court in this appeal.
11. Copy of this judgment be sent to the Court concerned.
Date: 07.07.2020 A. Tripathi (Raj Beer Singh, J)