Retrial Can Be Directed Only In 'Exceptional' Circumstances To Avert Miscarriage Of Justice: Supreme Court Formulates Principles

In a judgment delivered recently, the Supreme Court formulated principles regarding the power of a court to order retrial in a criminal case.

The court observed that retrial can be directed only in 'exceptional' circumstances to avert a miscarriage of justice. If a matter is directed for re-trial, the evidence and record of the previous trial is completely wiped out, the bench of Justices DY Chandrachud, Vikram Nath and BV Nagarathna observed.

Section 386 CrPC

Section 386 of the CrPC defines the powers of the Appellate Court. An Appellate Court is empowered inter alia in an appeal from an order of acquittal:

(i) To reverse such order and direct that a further inquiry be made; or

(ii) That the accused be re-tried or committed for retrial; or

(iii) Find him guilty and pass sentence on him according to law.

The Appellate Court is also empowered to order a retrial in the context of an appeal from a conviction and in clause (c)(i) in an appeal for enhancement of sentence.

Background 

In this case, FIR (96 of 2012) alleging rape of a girl was lodged against three accused Balwinder Singh, Gurpreet Singh alias Aman and Sandeep Singh. Later the prosecutrix committed suicide leaving behind a suicide note naming Balwinder Singh, Gurpeet Singh and Shinderpal Kaur. In this regard another FIR (100 of 2012) was lodged against SI Nasib Singh, Balwinder Singh, Gurpreet Singh alias Aman and Shinderpal Kaur for abetting the suicide of the prosecutrix. SI Nasib Singh was later implicated in the earlier FIR also. The Additional Sessions Judge, Patiala convicted (i) Balwinder Singh; (ii) Gurpreet Singh alias Aman; (ii) Shinderpal Pal Kaur; and (iv) Sandeep Singh in the trial arising out of FIR 96 of 2012 while Nasib Singh was acquitted. The same judge separately tried the case arising out of other FIR and convicted the three accused but acquitted Nasib Singh. In appeals filed by convicts and the mother of the prosecuterix, the High Court ordered retrial. Examining the facts of this case, the Apex court observed that the parties have not been able to demonstrate before the Court that separate trials led to a miscarriage of justice.

The following are the principles formulated by the Court by referring to earlier judgments:

(i) The Appellate Court may direct a retrial only in 'exceptional' circumstances to avert a miscarriage of justice;

(ii) Mere lapses in the investigation are not sufficient to warrant a direction for retrial. Only if the lapses are so grave so as to prejudice the rights of the parties, can a retrial be directed;

(iii)A determination of whether a 'shoddy' investigation/trial has prejudiced the party, must be based on the facts of each case pursuant to a thorough reading of the evidence;

(iv)It is not sufficient if the accused/ prosecution makes a facial argument that there has been a miscarriage of justice warranting a retrial. It is incumbent on the Appellant Court directing a retrial to provide a reasoned order on the nature of the miscarriage of justice caused with reference to the evidence and investigatory process;

(v) If a matter is directed for re-trial, the evidence and record of the previous trial is completely wiped out;

(vi) The following are some instances, not intended to be exhaustive, of when the Court could order a retrial on the ground of miscarriage of justice :         

 a) The trial court has proceeded with the trial in the absence of jurisdiction;

 b) The trial has been vitiated by an illegality or irregularity based on a misconception of the nature of the proceedings; and

 c) The prosecutor has been disabled or prevented from adducing evidence as regards the nature of the charge, resulting in the trial being rendered a farce, sham or charade