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CASE NO.: Appeal (crl.)  1243-1244 of 1997

PETITIONER: State of U.P.                                                    

RESPONDENT: Abhai Raj Singh & Anr.                                   

DATE OF JUDGMENT: 08/03/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       In these appeals the question of seminal importance  which arises is whether in exercise of power under Section  386 of the Code of Criminal Procedure, 1973 (in short ’the  Code’), the Appellate Court would be justified in directing  acquittal, where the records of the Trial Court are not  placed before it on some ground or the other.  The Allahabad  High Court by the impugned judgment directed acquittal of  the accused persons (present respondents) who were  appellants before it.    

       Background facts need be noticed are essentially as  follows:

       Accused persons faced trial for alleged commission of  offences punishable under Section 302 read with Section 34  of the Indian Penal Code, 1860 (in short the ’IPC’).  According to prosecution, Shakuntla Devi and Munni Devi were  sleeping on the roof of the second storey of their house.   Kanti Devi was sleeping on the open roof in front of the  southern verandah on the first floor of the house. The main  door of the house on the east was closed. There were no  other persons in the house because Nathoo Singh and Brij Pal  Singh were both in jail being accused of the murder of  Jogendra Singh.  It is said that these accused belonged to  the party of Dafedar Singh who had secured his bail in the  case of Gajju Singh’s murder, before the present incident in   question.  The allegation was that the three accused and the  deceased accused Jagannath Singh scaled over the uppermost  roof of Shakuntla Devi’s house from its south-western side  and reached the place where only Munni Devi and her step- mother were sleeping on separate beds near each other. Munni  Devi was, in the process, awakened.  On hearing sounds, she  flashed a torch, in the light of which she saw and  recognised all the four accused.  She also noticed that Om  Pal Singh had a knife about one foot long, while the other  three held guns.  Abhai Raj Singh immediately fired at the  sleeping Shakuntla Devi.  Munni Devi raised alarm.   Undeterred, Ved Pal Singh and Jagannath Singh also fired  shots at Shakuntla Devi, and Om Pal Singh repeatedly stabbed  her with the knife.  On hearing gun shot sounds villagers

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arrived and knocked at the main door.  The miscreants  escaped the way they had come. Kanti Devi opened the door to  let in the villagers who saw Shakuntla Devi dead. Munni Devi  dictated the FIR Ex. Ka.1 to her cousin Om Parkash Singh and  handed it to village Chowkidar to lodge it. At 4.30 a.m. in  the same night it was registered at Bhamora Police Station.  The police after recording the FIR, started investigation,  arrived at the spot, performed the inquest and sent the dead  body for autopsy. After completion of investigation, charge  sheet was placed.  Accused persons pleaded innocence and  faced trial. The present respondents were found guilty,  convicted and sentenced as afore-noted. Before commencement  of trial accused Jagannath died.  

       Two appeals against the common judgment and order dated  23.6.1979 were filed by the respondents Om Pal Singh, Abhai  Raj Singh and Ved Pal Singh.  After admission of the appeal,  registry of the High Court sent for the records from the  Trial Court.  By letter dated 27.6.1984 the office-in-charge  (Record room) Judges Court Bareilly informed the High Court  that the records of the case were not available having been  destroyed in the fire that broke out in the night between  18/19.11.1979.  Nothing seems to have been done thereafter,  though we feel that the registry should have placed the  matter before the appropriate Bench for further directions  to explore the possibility of reconstructing the records, to  effectively dispose of the appeals. Be that as it may, by  order dated 1.11.1993 i.e more than 9 years after the letter  was received from the lower court, 3 months time was allowed  for reconstruction of the record at the Sessions Judge  level. The High Court while disposing of the appeal on  25.2.1994 noted that no communication had been received  about the reconstruction of the record, and inference was  therefore drawn that it was not possible for the Sessions  Judge to reconstruct the record. It was in this background  it was held that the mandate of law contained in Sections  385 and 386 of the Code cannot be complied with and,  therefore, directed that the appellants were not to be  arrested in pursuance to the judgment and order, and were  not required to surrender also and the bail bonds were to be  cancelled.

       Learned counsel for the appellant submitted that the  approach of the High Court is not correct and is not legally  sustainable.  The course adopted by the High Court is not  permitted under Section 386 of the Code. In response,  learned counsel for the respondents submitted that after  long passage of time when reconstruction of the records is  not possible or practicable, the only course which was  available to be adopted has been followed by the High Court.

       Sections 385 and 386 of the Code deals with "procedure  for hearing appeals not dismissed summarily" and "powers  of the Appellate Court".  They read as follows:

"Section 385- Procedure for hearing  appeals not dismissed summarily: (1) If  the Appellate Court does not dismiss the  appeal summarily, it shall cause notice  of the time and place at which such  appeal will be heard to be given-

(i)     to the appellant or his pleader;

(ii)    to such officer as the State

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Government may appoint in this  behalf;

(iii)   if the appeal is from a judgment  of conviction in a case  instituted upon complaint to the  complainant;

(iv)    if the appeal is under Section  377 or Section 378, to the  accused, and shall also furnish  such officer, complainant and  accused with a copy of the  grounds of appeal.

(2)The Appellate Court shall then send  for the record or the case, if such  record is not already available in that  Court and hear the parties:

Provided that if the appeal is only  as to the extent or the legality of the  sentence, the Court may dispose of the  appeal without sending for the record.

(3)     Where the only ground for appeal  from a conviction is the alleged  severity of the sentence, the appellant  shall not except with the leave of the  Court urge or be heard in support of any  other ground".

Section 386- Powers 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 of  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

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(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;

(3) 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".

       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.  The Appellate Court is also empowered to

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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.   

       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).

       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 Re Sevugaperumal and Ors. (AIR 1943 (Madras)  391). The view has been reiterated by several High Courts as  well, even thereafter.   

       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

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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.     

   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.