Retrial and Joint Trials: Supreme Court Sets Aside High Court Order in Nasib Singh vs. State of Punjab (2021)

Date of the Judgment: 8 October 2021
Citation: 2021 INSC 694
Judges: Dr Dhananjaya Y Chandrachud, J, Vikram Nath, J, and B.V. Nagarathna, J
Can a High Court order a retrial in a criminal case, especially when it involves clubbing two separate FIRs and an acquittal? The Supreme Court of India recently addressed this critical question in a case involving allegations of gang rape, abetment of suicide, and a tainted investigation. The core issue was whether the High Court of Punjab and Haryana was justified in ordering a retrial and combining proceedings from two separate FIRs, particularly when one of the accused had been acquitted. The Supreme Court bench, comprising Justices Dr Dhananjaya Y Chandrachud, Vikram Nath, and B.V. Nagarathna, delivered the judgment.

Case Background

The case revolves around a series of events that began on 13 November 2012, when the prosecutrix was allegedly kidnapped and sexually assaulted. According to the prosecution, the prosecutrix and Shinderpal Kaur were returning home after lighting earthen lamps when they were approached by a car driven by Gurpreet Singh. Balwinder Singh, who was in the car, allegedly grabbed the prosecutrix and forced her into the vehicle. She was then taken to a motor shed owned by Sandeep Singh, where she was allegedly raped by Balwinder Singh and Gurpreet Singh. The prosecutrix was also allegedly given an intoxicant, rendering her semi-conscious. She was later found near a Gurudwara and managed to reach home to report the incident to her mother, Surjeet Kaur.

On 27 November 2012, the prosecutrix recorded her statement with Sub-Inspector Nasib Singh, leading to the registration of FIR 96/2012 under Sections 363, 366A, 376, 328, and 34 of the Indian Penal Code (IPC). The FIR named Balwinder Singh, Gurpreet Singh, and Sandeep Singh as the accused. However, the prosecution alleged that Nasib Singh did not conduct a proper investigation or make any arrests.

Tragically, on 26 December 2012, the prosecutrix committed suicide, leaving a note blaming Balwinder Singh, Gurpreet Singh, and Shinderpal Kaur. Following her death, FIR 100/2012 was registered against Nasib Singh, Balwinder Singh, Gurpreet Singh, and Shinderpal Kaur for abetment of suicide. This FIR was later cancelled and replaced by FIR 187/2012 under Section 306 read with Section 34 of the IPC.

Timeline

Course of Proceedings

The Additional Sessions Judge, Patiala, convicted Balwinder Singh, Gurpreet Singh, Shinderpal Kaur, and Sandeep Singh in the trial arising out of FIR 96/2012 for offences under Sections 376(2)(g), 366, 328, and 120B of the IPC. However, the same court acquitted Nasib Singh, the appellant, in both FIR 96/2012 and FIR 187/2012. The court found no evidence to prove that Nasib Singh had conducted a tainted investigation or abetted the suicide of the prosecutrix. The High Court of Punjab and Haryana, however, remitted the judgments of conviction and acquittal and directed that the trials be clubbed and tried together under Section 223 of the Code of Criminal Procedure (CrPC).

Legal Framework

The case primarily involves the interpretation of Section 223 of the CrPC, which deals with the joinder of charges and persons in a criminal trial. Section 223(d) of the CrPC allows for the joint trial of persons accused of different offences committed in the course of the same transaction. The High Court invoked this provision to justify its order for a joint retrial. The Supreme Court also examined Section 386 of the CrPC, which outlines the powers of the Appellate Court, including the power to order a retrial.

Relevant sections of the Indian Penal Code (IPC) include:

• Section 363: Punishment for kidnapping.
• Section 366A: Kidnapping or inducing a minor for illicit intercourse.
• Section 376: Punishment for rape.
• Section 328: Causing hurt by means of poison, etc., with intent to commit an offence.
• Section 306: Abetment of suicide.
• Section 217: Public servant disobeying direction of law with intent to save person from punishment or property from forfeiture.
• Section 218: Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture.
• Section 120B: Punishment of criminal conspiracy.

The Supreme Court also considered Section 218 of the CrPC, which mandates separate charges for distinct offences, and Sections 219, 220, and 221, which provide exceptions to this rule.

Arguments

Appellant’s (Nasib Singh) Submissions:

• The appellant argued that the High Court’s order for a retrial was unjustified, as the Additional Sessions Judge had acquitted him in both trials.
• The appellant contended that the High Court’s order had caused prejudice to him since the order of acquittal in his favor has also been set aside without any evaluation on merits and without cause or justification.
• He highlighted that crucial witnesses who testified in his favor had since passed away, and their evidence would be lost in a retrial.
• He also argued that he is currently 65 years old and a de novo trial would cause severe distress to him.

State of Punjab’s Submissions:

• The State argued that while Section 218 of the CrPC stipulates separate trials for separate offenses, Section 223 provides an exception for joint trials.
• The State submitted that the High Court had not come to the conclusion that there would be a failure of justice but only that there may occasion a failure of justice if a joint trial is not ordered.
• The State further submitted that the order of retrial wipes out the evidence from the record and it cannot exist for some accused and not for others.
• The State also argued that the High Court erred in ordering a retrial, as it would obliterate the evidence that led to the conviction of the other accused.

Respondent’s (Balwinder Singh) Submissions:

• The respondent argued that there were three FIRs related to the same transaction and that separate trials would lead to a miscarriage of justice.
• The respondent argued that the suicide of the prosecutrix was a consequence of the alleged gang rape, and therefore, both offenses fell under Section 223(d) of the CrPC.
• The respondent contended that the order of retrial does not cause any prejudice to the appellant since the High Court had directed that fresh charges should be framed and it would be open to the appellant to pursue his remedies of seeking a discharge at that stage.

Summary of Arguments

Issues Framed by the Supreme Court

The Supreme Court framed the following issue for consideration:

1. Whether holding separate trials arising out of two FIRs warrants the direction of the High Court for a de novo trial.

Treatment of the Issue by the Court

Authorities

The Supreme Court relied on several key authorities to arrive at its decision:

Cases:

• Ukha Kolhe v. State of Maharashtra, (1964) 1 SCR 926 – This Constitution Bench decision extensively dealt with the scope of the power of the Appellate Court to direct a retrial, emphasizing that it should only be done in exceptional circumstances.
• State of M P v. Bhooraji, (2001) 7 SCC 679 – This case highlighted that a de novo trial should be a last resort and only when it is indispensable to avert a “failure of justice”.
• Zahira Habibulla Sheikh v. State of Gujarat, (2004) 4 SCC 158 – This case, known as the “Best Bakery Case,” involved a retrial due to a faulty investigation and trial. The Supreme Court clarified that it was an extraordinary case and the principles laid down in it cannot be applied to all cases uniformly.
• Satyajit Banerjee v. State of West Bengal, 2005 (1) SCC 115 – This case cautioned that the Appellate Court may direct a retrial only in exceptional cases and that a retrial cannot be directed to adduce additional evidence and correct the faulty investigation.
• Mohd Hussain v. State (Government of NCT of Delhi), (2012) 9 SCC 408 – This case emphasized that the power to order a retrial must be exercised in exceptional situations.
• Nar Singh v. State of Haryana, (2015) 1 SCC 496 – This case held that the Appellate Court may direct a retrial if all the relevant questions are not put to the accused by the trial court as required under Section 313 CrPC.
• Ajay Kumar Ghoshal v. State of Bihar, (2017) 12 SCC 699 – This case reiterated that the power to order a retrial should be exercised only in exceptional cases where an omission or irregularity has caused a failure of justice.
• State of Andhra Pradesh v. Cheemalapati Ganeswara Rao, AIR 1963 SC 1850 – This case interpreted Section 239(d) of the old Code, which corresponds to Section 223(d) of the CrPC, stating that offences committed in the course of the same transaction would mean offences that are committed in the proximity of time or place, or unity of purpose and design.
• Chandra Bhal v. The State of UP, 1971 (3) SCC 983 – This case observed that a separate trial is not contrary to law even if a joint trial for the offences along with other offences is permissible and that the true test is whether any prejudice has been sustained as a result of a separate trial.
• Essar Teleholdings Limited v. Central Bureau of Investigation, (2015) 10 SCC 562 – This case reiterated the principles enunciated in Chandra Bhal and held that even if the conditions stipulated in Section 223 CrPC to conduct a joint trial have been fulfilled, it may not be desirable to direct a joint trial if it would prolong the trial, cause unnecessary wastage of judicial time, and confuse or cause prejudice to the accused.
• R. Dineshkumar v. State, (2015) 7 SCC 497 – This case relied on the interpretation placed on Section 223(d) CrPC in Cheemalapati Ganeswara Rao.
• Isaac v. Ronald Cheriyan, (2018) 2 SCC 278 – This case reiterated the principle that a de novo trial means a new trial ordered by an appellate court in exceptional cases.
• Mary Pappa Jebamani v. Ganesan, (2014) 14 SCC 477 – This case reiterated the principle that a de novo trial means a new trial ordered by an appellate court in exceptional cases.

Legal Provisions:

• Section 223 of the Code of Criminal Procedure (CrPC): This section deals with the joinder of charges and persons in a criminal trial.
• Section 386 of the Code of Criminal Procedure (CrPC): This section outlines the powers of the Appellate Court, including the power to order a retrial.
• Section 218 of the Code of Criminal Procedure (CrPC): This section mandates separate charges for distinct offences.
• Sections 219, 220, and 221 of the Code of Criminal Procedure (CrPC): These sections provide exceptions to the rule of separate charges for distinct offences.
• Section 465(1) of the Code of Criminal Procedure (CrPC): This section states that no finding, sentence, or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation, or revision on account of any error, omission, or irregularity unless a failure of justice has occurred.

Authorities Considered by the Court

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Supreme Court relied on Ukha Kolhe v. State of Maharashtra [CITATION]* to emphasize that retrials should be ordered only in exceptional circumstances to prevent a miscarriage of justice.
• The Court used State of M P v. Bhooraji [CITATION]* to highlight that a de novo trial should be a last resort and only when it is indispensable to avert a “failure of justice”.
• The Court distinguished the facts of the present case from Zahira Habibulla Sheikh v. State of Gujarat [CITATION]*, noting that the “Best Bakery Case” was an extraordinary one and not applicable to all cases.
• The Court cited Satyajit Banerjee v. State of West Bengal [CITATION]* to caution that retrials are not for correcting faulty investigations.
• The Court relied on Mohd Hussain v. State (Government of NCT of Delhi) [CITATION]* to reiterate that the power to order a retrial must be exercised in exceptional situations.
• The Court referred to Nar Singh v. State of Haryana [CITATION]* to highlight that a retrial can be ordered for non-compliance of Section 313 CrPC.
• The Court cited Ajay Kumar Ghoshal v. State of Bihar [CITATION]* to emphasize that retrials are for cases where an omission or irregularity has caused a failure of justice.
• The Court used State of Andhra Pradesh v. Cheemalapati Ganeswara Rao [CITATION]* to interpret the phrase “same transaction” in Section 223(d) of the CrPC.
• The Court relied on Chandra Bhal v. The State of UP [CITATION]* to state that separate trials are not illegal even if joint trials are permissible.
• The Court referred to Essar Teleholdings Limited v. Central Bureau of Investigation [CITATION]* to hold that joint trials are not always necessary even if permissible.
• The Court used R. Dineshkumar v. State [CITATION]* to reiterate the interpretation of Section 223(d) CrPC.
• The Court cited Isaac v. Ronald Cheriyan [CITATION]* and Mary Pappa Jebamani v. Ganesan [CITATION]* to reiterate that a de novo trial means a new trial in exceptional cases.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the principle that retrials should be ordered only in exceptional circumstances to prevent a miscarriage of justice. The Court emphasized that the High Court’s order for a retrial would cause serious prejudice to the appellant, especially since crucial witnesses had passed away, and the evidence recorded in the previous trials would be wiped out. The Court also noted that the High Court had not adequately demonstrated how separate trials had led to a miscarriage of justice, and that the order was based on a possibility of a miscarriage of justice rather than an actual one. The Court was also concerned about the delay and the serious nature of the allegations against the accused, and the potential for a retrial to further delay justice.

Fact:Law Ratio

The Court’s decision was primarily driven by legal considerations (70%) such as the interpretation of Section 223 of the CrPC and the principles governing retrials. However, factual aspects (30%) such as the death of witnesses and the potential prejudice to the appellant were also considered.

Logical Reasoning

Key Takeaways

• Retrials are Exceptional: The Supreme Court reiterated that retrials should be ordered only in exceptional circumstances to prevent a miscarriage of justice.
• Burden of Proof: The party seeking a retrial must demonstrate that a miscarriage of justice has occurred due to the original trial.
• Prejudice to Accused: Retrials should not be ordered if they would cause prejudice to the accused, such as the loss of crucial witnesses or the setting aside of an acquittal without proper evaluation.
• Joint Trials are not Mandatory: While Section 223 of the CrPC allows for joint trials, it is not mandatory, and separate trials are not illegal unless proven to cause a miscarriage of justice.
• Evidence from Previous Trials: An order of retrial wipes out the evidence recorded at the earlier stage.

Directions

The Supreme Court set aside the impugned judgment and order of the High Court of Punjab and Haryana dated 20 December 2019. The Court restored the entire batch of criminal appeals to the file of the High Court for fresh disposal on merits. The Supreme Court clarified that nothing in its judgment should be construed as an expression of any opinion on the merits of the appeals, which are to be heard and decided by the High Court.

Specific Amendments Analysis

Not Applicable.