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ISSAC Vs. Ronald Cheriyan and Ors. - (Supreme Court) (23 Jan 2018)

Retrial cannot be ordered, when there is a mere irregularity or where it does not cause any prejudice



Instant appeal arises out of the judgment passed by Kerala High Court allowing Criminal Revision Petition preferred by Respondent No. 1 thereby setting aside the acquittal of the Appellant-Accused No. 1 for the offences punishable under Section 302, 394 of Indian Penal Code, 1860 (IPC) read with Section 34 of IPC and further remitting the matter back to the trial Court for retrial. The point falling for consideration is whether the High Court was right in setting aside the judgment of the trial Court and remitting the matter back to the trial Court for retrial.

Section 386 of Code of Criminal Procedure, 1973 (Cr. PC) defines the powers of the Appellate Court in dealing with the appeals. The powers enumerated thereon are vested in all Courts, whether the High Court or subordinate Courts, except that Clause (a) of the Section is restricted to the powers of the High Court only, since an appeal against an order of acquittal lies only to that Court, while Clause (b) of the Section is not so restricted and embraces all Courts.

Under Section 386(a) and (b)(i) of Cr. PC, the power to direct retrial has been conferred upon the Appellate Court when it deals either with an appeal against judgment of conviction or an appeal against acquittal (High Court). There is a difference between the powers of an Appellate Court under Clauses (a) and (b). Under Clause (b), the Court is required to touch the finding and sentence, but under Clause (a), the Court may reverse the order of acquittal and direct that further enquiry be made or the Accused may be retried or may find him guilty and pass sentence on him according to law.

A retrial may be ordered when the original trial has not been satisfactory for particular reasons like appropriate charge not framed, evidence wrongly rejected which could have been admitted or evidence admitted which could have been rejected etc. Retrial cannot be ordered when there is a mere irregularity or where it does not cause any prejudice, the Appellate Court may not direct retrial. The power to order retrial should be exercised only in exceptional cases.

In appeal against acquittal, in exceptional circumstances, the High Court may set aside the order of acquittal even at the instance of private parties, though the State may not have thought it fit for appeal. But it is to be emphasized that, this jurisdiction is to be exercised only in exceptional circumstances, when there is glaring defect in the conduct of trial which has materially affected the trial or caused prejudice.

In the present case, the High Court found that even though the trial Court has framed an issue on the point of sharing of common intention of Accused Nos. 1 and 2 in committing the offence, the omission to frame charges under Section 34 of IPC has materially affected the trial. The High Court further observed that, the fingerprint expert who prepared Ex. P8 ought to have been examined and other circumstances emerging out of evidence ought to have been examined by the trial Court. The High Court further observed that, because of the omission to frame the charges under Section 34 of IPC, in spite of framing the issue of common intention, the trial Court has not examined the evidence in proper perspective, which according to the High Court has materially affected the trial which is called for retrial. The discretion exercised by the High Court under Section 386(a) of CrPC directing retrial with certain directions cannot be said to be erroneous warranting interference. The trial court shall proceed with the matter as per the directions of the High Court and dispose of the matter as expeditiously as possible. The appeal is dismissed.


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