Allahabad High Court
Nepal Singh And Anr. vs State Of U.P. on 25 July, 2023
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:147604-DB Court No. - 42 Case :- CRIMINAL APPEAL No. - 555 of 1982 Appellant :- Nepal Singh And Anr. Respondent :- State of U.P. Counsel for Appellant :- G.P. Dikshit,Kuldeep Singh Yadav,Mahendra Singh Counsel for Respondent :- Dga And Case :- CRIMINAL APPEAL No. - 562 of 1982 Appellant :- Abhibaran Singh Respondent :- State of U.P. Counsel for Appellant :- Daleep Kumar,Krishan Mohan Mishra Counsel for Respondent :- Dga Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Ms. Nand Prabha Shukla,J.
1. Heard Sri Kuldeep Singh Yadav, learned counsel for the appellant in Criminal Appeal No.555 of 1982 (Nepal Singh And Anr. Vs. State of U.P.), Sri Akash Misra, holding brief of Sri Krishna Mohan Misra, learned counsel for the appellant in Criminal Appeal No.562 of 1982 (Abhibaran Singh Vs. State of U.P.) and Sri K.P. Pathak, learned A.G.A. for the opposite party/State.
2. Criminal Appeal No.555 of 1982 has been filed by two accused, namely, Nepal Singh and Qayam Sigh. The appeal qua the accused - appellant no.2 - Qayam Singh was abated by order dated 06.07.2021. Thus, the Criminal Appeal No.555 of 1982 survives only with respect to the accused appellant Napal Singh. The connected Criminal Appeal No.562 of 1982 has been filed by the accused Abhibaran Singh.
3. Both the aforesaid criminal appeals arise from the judgment and order dated 26.02.1982 in Session Trial No.293 of 1980 arising out of case crime No.109/1980 P.S. Jaswant Nagar, Etawah, under Section 302/34 I.P.C., passed by the Session Judge, Etawah, whereby all the three accused, namely, Nepal Singh, Qayam Singh and Abhibaran Singh were convicted with life imprisonment under Section 302/34 I.P.C.
4. On 17.07.2023, this Court passed the following order :
"1. Heard Sri Kuldeep Singh Yadav, learned counsel for the appellant No.1 in Criminal Appeal No.555 of 1982 and Sri Aakash Misra, holding brief of Sri Krishna Mohan Misra, learned counsel for the appellant in connected Criminal Appeal No.562 of 1982 and Sri K.P. Pathak, learned A.G.A. for the opposite party.
2. The appellants of both the aforesaid two appeals were convicted by judgment and order dated 26.02.1982 in Session Trial No.293 of 1980 under Section 302/34 IPC with life imprisonment, passed by Court of Sessions Judge, Etawah. Trial Court records were not received from the Trial Court despite letters sent by this Court. By letter No.160/XV Etawah, dated 27.02.2003, the District Judge, Etawah reported to this Court as under :
From B.A. Zaidi District Judge Etawah.
Τo The Section Officer (Crl Department) High Court of Judicature at Allahabad.
No. 160/XV Etawah Dated February 27,2003 Sub: Reconstruction of the lower court record in Criminal Appeal No. 555 of 1982 (Nepal Singh & another Vs State) connected with Criminal Appeal No. 562 of 1982 (Abhibaran Singh Vs State) arising out of S.T. No 293 of 1980 decided by Sri S.N. Harkauli, Sessions Judge Etawah on 26.2.1982.
Sir,
1. With reference to letter No 1286-Crl Dept. dated 10.2.2003 on the subject noted above. I have the honour to inform that enquiry was held by Sri I.B. Singh Officer-in-charge Record Room in regard to the circumstances under which the above record was weeded out before time, and who was responsible for it. Sri I.B. Singh Additional District Judge-Officer-in-charge Record Room in his report submitted that the record of S.T. No 293 of 1980 State versus Nepal Singh and others under section 302/34 IPC PS Jaswant Nagar District Etawah has been weeded out by Sri Gyani Ram Sant the then Record Keeper illegally, who has retired on 30.6.1996, and as regulation 351(a) of Civil Service Regulations provides no departmental enquiry can be Initiated against a government official after the expiry of four years from the date of retirement except with the sanction of His Excellency the Governor.
2. Enquiry Officer in his report noted that it appears that the record has been weeded out deliberately for extraneous consideration which amounts to offences under sections 201 and 477 IPC and criminal proceedings against Sri Sant the then Record Keeper may be initiated if approved by the Hon'ble Court. A letter in this behalf has been sent to Hon'ble High Court at the administrative side for imparting necessary directions.
3. Sri G.N Sinha Additional District Judge Etawah was ordered for reconstruction of record of S.T. No. 293 of 1980 and as well as the case diary. Sri G. N. Sinha in his report submitted on 21.2.2003 has noted that only copy of postmortem report of Sri Satya Prakash (deceased) has been received from the office of CMS Etawah. No other paper either from the accused side or from police could be received after all efforts out. Even case diary or carbon copy of the same could not be received because more than twenty years have elapsed since the decision. These reports of enquiry officers regarding weeding and reconstruction alongwith constructed postmortem report are being submitted herewith for kind perusal of the Hon'ble Court.
Yours Faithfully, Sd./-
(B.A.Zaidi) District Judge Etawah Encls: As above
3. Vide another letter No.826/XV, District Judge, Etawah, dated 23.11.2002, the District Judge, Etawah reported to this Court that the entire file of S.T. No.293/80 (State Vs. Nepal Singh and another) P.S. Jaswant Nagar, under Section 302/32 I.P.C. relating to Case Crime No.109/80 have been weeded out on 17.07.1993.
4. Again vide letter No.170/XV dated 21.01.2020, the Additional District and Sessions Judge, Etawah and letter No.223/XV Etawah, dated 31.01.2020 reiterated the earlier aforequoted communication dated 27.02.2003.
5. Under the circumstances, this Court passed an order dated 18.04.2022 requiring the learned A.G.A. to file an affidavit in respect of possibility of a retrial or of the record to be reconstructed. Despite the said order the opposite party has filed a vague Application No.3/2023, dated 15.02.2023 in which they have merely stated in paragraph 3 that as per question answer obtained, the entire record relating to ST No.293/80 decided on 26.02.1982, have been weeded out on 17.07.1993. The opposite party has not stated whether reconstruction of record or retrial is possible or not.
6. The District Judge, Etawah, has not specifically mentioned in any of his report as to whether reconstruction of record or retrial is possible or not. Faced with this situation, this Court passed an order dated 02.06.2023, as under :
"Supplementary affidavit filed on behalf of the learned Additional Government Advocate stating therein that the records of the court below have already been weeded out.
As per the report, appellant no.1- namely, Nepal Singh in the present appeal and appellant, namely, Ahibaran Singh in connected Criminal Appeal No.562 of 1982 have already obtained bail by surrendering before the concerned Magistrate and thus the previous order of the Court has been complied with.
Let Chief Judicial Magistrate, concerned submit a report as to how many witnesses of the trial are still alive so as to order any re-trial in the matter.
Report be submitted by the next date fixed.
Let the matter appear before appropriate Bench on 17.07.2023."
7. Despite the aforequoted order dated 02.06.2023, the Chief Judicial Magistrate has not submitted a report as to how many witnesses of the trial are still alive so as to order retrial in the matter. He merely stated in his letter dated 14.07.2023 that as per information received from the concerned police station, no record relating to witnesses could be traced.
8. In view of the aforesaid, we direct the District Judge, Etawah to submit a specific report on the following points :
(i) Whether records of Session Trial No.293 of 1980 (State Vs. Nepal Singh and two others) P.S. Jaswant Nagar, can be reconstructed ?
(ii) Whether under the facts and circumstances of the case retrial in the aforesaid session trial No.293 of 1980 is possible ?
9. We also direct the Superintendent of Police, Etawah, to file a personal affidavit clearly replying on the following points :
(i) Whether any record relating to the S.T. no.293 of 1980 is available either with the police authorities or the DGC (Criminal) ? If any of the record is available the same shall be provided to the District Judge, Etawah within a week and compliance report shall be submitted.
(ii) Whether reconstruction of record of Session Trial No.293 of 1980 is possible ? If reconstruction of record is not possible, whether retrial is possible on the basis of available record/information/witnesses ?
10. The appellants shall also file their personal affidavit on or before the next date fixed clearly stating as to whether any record relating to Session Trial in question are available with them? In the event any record is available with them, copies thereof shall be filed alongwith affidavit.
11. Report and affidavit as directed above shall be submitted before this Court on or before the next date fixed. Non compliance of the order shall be viewed seriously.
12. List/put up in the additional cause list on 25.07.2023 peremptorily, alongwith Criminal Appeal No.562 of 1982.
13. A copy of this order shall be sent by the Registrar General of this Court to the District Judge, Etawah for immediate compliance.
14. Learned A.G.A. shall communicate this order in writing to the Superintendent of Police, Etawah, within 24 hours for immediate compliance."
5. In compliance to the aforequoted order, the District Judge, Etawah, has submitted a report dated 22.07.2023 in which he has stated that Sri Alok Kumar Srivastava, Additional District & Sessions Judge, Court No.7, Etawah, was appointed as Officer to reconstruct file of the aforesaid session trial who submitted his report dated 22.07.2023 stating that on inquiry from DGC (Criminal) Etawah, accused Nepal Singh and Abhibaran Singh and Senior Superintendent of Police, Etawah, it has been stated by them that no records relating to the Session Trial No.109/1980 are available with them. The Senior Superintendent of Police, Etawah has also stated that records of the year 1980 including GD and case diary etc have been weeded out. As per report of the District Judgeship, Etawah, the records of the aforesaid Session Trial No.293 of 1980 have been weeded out on 17.7.1993. From the letter of the District Judge, Etawah, it appears that the efforts are being made for reconstruction of file since the year 2003. In his aforesaid report the District Judge, Etawah has clearly stated that neither the first information report, nor the charge sheet nor the case diary etc are available and as such even the name of witness and their addresses can not be traced. He, therefore, concluded that neither the reconstruction of file is possible nor retrial is possible.
6. Learned A.G.A. has filed today a personal affidavit of Sri Sanjay Kumar, Superintendent of Police, Etawah, dated 23.07.2023. In paragraphs 8, 9 and 10 of the affidavit the Superintendent of Police, Etawah, has stated as under :
"8. That vide order dated 17.7.2023, this Hon'ble Court has directed the deponent on the aforesaid two points and in response to the first point that it is being very humbly stated that the records pertaining to Session Trial No. 293 of 1980 are not traceable and the reports submitted by the concerned officers of the police department as well and reply submitted by the inquiry of the District & Session Judge, Etawah clearly states that records pertaining to the Session Trial No.293 of 1980 has been weeded out on 17.7.1993.
9. That in response to the second points as to whether the reconstruction of the record is possible or not it is to be stated that as the complaint of the complainant, chik tehrir and case diaries, medical report, inquest report as well as copy of the postmortem report is not available in any, of the office of the deponent and hence the reconstruction of the record of Session Trial No. 293 of 1980 appears to be not possible.
10. That further it is being brought to the kind notice of this Hon'ble Court that the informant of Case Crime No. 109 of 1980, namely Sri Krishna Gopal S/o Kalika Prasad Dubey died approximately 30 years ago and one of the accused namely Qayam Singh S/o Jor Singh has also expired approximately 10 years ago. For kind perusal of this Hon'ble Court copy of the certificate issued by the Gram Pradhan pertaining to the death of the informant one of the accused are collectively being annexed herewith and the same is marked as Annexure No.-3 to this affidavit."
7. A personal affidavit of accused appellant, dated 21.07.2023 has been filed today by learned counsel for the appellant. In paragraphs 10, 12, and 13 of his affidavit, the accused appellant Abhibaran Singh has stated as under :
"10. That the appellant doesn't have any record relating to Session Trial no.293/1980 under Section 302/34 IPC, Police Station Jaswant Nagar, District Etawah.
12 That at present, the appellant is aged about 69 years and he remain in jail for about 2 years during the trial and about 15 days after conviction.
13. That except the present case, the appellant has no criminal history and he has clean antecedents."
8. Learned counsel for the appellant of Criminal Appeal No.555 of 1982 states that no records relating to the Session Trial No.293 of 1980 are available with the accused appellant Nepal Singh.
9. In view of the aforesaid, the statutory mandate of Section 385(2) Cr.P.C. is not possible to be observed.
10. In the case of State of Uttar Pradesh vs. Abhai Raj Singh, (2004) 4 SCC 6 (Paras-6 to 10), Hon'ble Supreme Court has held, as under:-
"6. The powers of the Apppellate 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. The Appellate Court is also empowered to discharge the accused. The third category which seems to be applicable to the present case is a direction for re-trial by a 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 re-trial after reconstruction of the records if in spite of positive and constructive efforts to reconstruct 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, said course should be adopted and the appeal can be disposed of as it deserved under course indicated in clauses (i) and (ii). After perusal of the records and hearing 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 and Ors. 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 the 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 Sessions. (See State of U.P. v. Shankar and Anr. AIR 1962 SC 1154).
8. It has been the consistent view taken by several High Courts 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 A.W.N. 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 re- construction. The said view was reiterated more than six decades back in Sevugaperumal, Re. AIR 1943 (Madras) 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 considerations in view and came to the abrupt conclusion that re-construction was not possible merely because there was no response from the Sessions Judge. The order for re- construction was on 1.11.1993 and the judgment of the High Court is in Criminal Appeal 1970 of 1979 dated 25.2.1994. The order was followed in Criminal Appeal No.1962 of 1979 disposed of on 16.8.1995. It is not clear as to why the High Court did not require the Sessions Court to furnish the information about re-construction 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 re-construction 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 reconstructed 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 its own merits and in accordance with law. If it finds that re- construction is not practicable but by order retrial interest of justice could be better served - adopt that course and direct retrial - and from that stage law shall take its normal course. If only reconstruction is not possible to facilitate High Court to hear and dispose of the appeals and the further course of retrial and fresh adjudication by 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 judgment shall operate and the matter shall stand closed. The appeals are accordingly disposed of."
11. The law laid down by Hon'ble Supreme Court in the case of Abhai Raj Singh (supra) has been reiterated in a recent judgment in Jitendra Kumar Rode vs. Union of India, 2023 SCC OnLine SC 485 (Paras-35 to 40), as under:
"35. In light of the abovementioned discussion, the Accused, in appeal, has a right to have the record perused by the Appellate Court and, therefore, upholding a conviction by merely having noted that the counsel for the accused not having the record at the time of filing the appeal is "doubtful" and that "no one can believe" the appeal would have been filed without perusing the record, as observed by the High Court is not correct. The job of the Court of Appeal is not to depend on the lower Court's judgment to uphold the conviction but, based on the record available before it duly called from the Trial Court and the arguments advanced before it, to come to a conclusion thereon.
36. In the facts at hand, the alleged offence in question was committed on 21.3.1995, and the judgment of the Trial Court was delivered on 7.12.1999. More than 28 years have passed since the commission of the offence. As already indicated, the relevant Trial Court record has not been able to be reconstructed, despite the efforts of the courts below. Hence, in our considered view, as discussed above, ordering a retrial is not in the interest of justice and will not serve any fruitful purpose. The time elapsed must be taken into consideration by the Court, and we may stress on that, only after taking due note of and taking steps to abide by the warning issued by this Court in Abhai Raj Singh (supra), as was correctly done in Sita Ram (supra).
Conclusions
37. Protection of the rights under Article 21 entails protection of liberty from any restriction thereupon in the absence of fair legal procedure. Fair legal procedure includes the opportunity for the person filing an appeal to question the conclusions drawn by the trial court. The same can only be done when the record is available with the Court of Appeal. That is the mandate of Section 385 of the CrPC. Therefore, in the considered view of this Court, it is not within prudence to lay down a straightjacket formula, we hold that noncompliance with the mandate of the section, in certain cases contingent upon specific facts and circumstances of the case, would result in a violation of Article 21 of the Constitution of India, which we find it to be so in the instant case.
38. The language of Section 385 shows that the Court sitting in appeal governed thereby is required to call for the records of the case from the concerned Court below. The same is an obligation, power coupled with a duty, and only after the perusal of such records would an appeal be decided.
39. In the view of the aforesaid, the appeal is allowed. The impugned judgment and the conviction dated 07.12.1999 passed by Special Judge (Prevention of Corruption Act, 1988), Lucknow, in Case No.7/1996 is set aside, subject thereof, is set aside.
40. The impugned judgment had directed the accused to pay, by way of an enhanced fine, Rupees 25,000. Given the above, the fine, be it of whatever amount, if deposited, is liable to be returned to the Appellant."
12. In view of the facts and legal position as noted above and the fact that these Criminal Appeals are pending in this court from last more than 41 years, we are of the view that since as per report submitted by the District Judge, Etawah, Senior Superintendent of Police, Etawah, no records are available relating to the Session Trial No.293 of 1980 and neither reconstruction of record nor retrial is possible, therefore, mandate of law contained in Sections 385 and 386 of the Cr.P.C. cannot be complied with.
13. Learned counsel for the appellants and learned A.G.A. jointly submit that in the peculiar facts and circumstances of the case as emerging from the records of this appeal regarding reconstruction of record/ retrial, the appeal may be disposed of in terms of the law laid down by Hon'ble supreme Court in the case of Ahai Raj Singh (supra) and Jitendra Kumar Rode (supra).
14. It has also been mentioned in the report accompanying the report of the District Judge, Etawah that the informant - Krishan Gopal had died about 30 years ago.
15. Since in the present set of facts, as per report submitted by the District Judge, Etawah and also as per affidavit filed by Superintendent of Police, Etawah and by the accused appellant Abhibaran Singh, neither any record of the Session Trial No.293 of 1980 (case crime No.109 of 1980) are available nor name of witnesses are available, nor as per records/affidavits, record of the aforesaid session and trial can be reconstructed nor retrial is possible, therefore, we are left with no alternative except to allow the appeal in terms of the judgment of Supreme Court in State of U.P. Vs. Abhai Raj Singh and another, (2004) 4 SCC 6.
16. The impugned judgmnt and order in Session Trial No.293 of 1980 arising out of Case Crime No.109 of 1980 (State Vs. Nepal Singh and others) is hereby set aside. The appeal is disposed of. If the appellants are on bail, their bail bonds and sureties are cancelled. They need not surrender.
Order Date :- 25.7.2023/vkg