Retrial and Joint Trial in Criminal Proceeding
Retrial and Joint Trial in Criminal Proceeding
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Nasib Singh vs The State of Punjab & Anr
Bench: Dr Dhananjaya Y Chandrachud, Vikram Nath and BV Nagarathna
Issue- Circumstances under which retrial and joint trial may be ordered by the Appellate Court
The Supreme Court discussed Ukha Kolhe v. State of Maharashtra (1964) 1 SCR 926 a Constitution Bench judgment and found that it emphasizes that a retrial would not be ordered unless the Appellate Court is satisfied that:
- The court trying the proceeding had no jurisdiction;
- The trial was vitiated by serious illegalities and irregularities or on account of a misconception of the nature of the proceedings as a result of which no real trial was conducted; or
- The prosecutor or an accused was for reasons beyond their control prevented from leading or tendering evidence material to the charge and that in the interest of justice, the Appellate Court considers it appropriate to order a retrial.
Another feature which emerges from the above decision is that an order of retrial wipes out from the record the earlier proceeding and exposes the present accused to another trial. It is for that reason that the court has affirmed the principle that a retrial cannot be ordered merely on the ground that the prosecution did not produce proper evidence and did not know how prove their case.
The Supreme Court further looked into Mohd Hussain v. State (Government of NCT of Delhi (2012) 9 SCC 408, Nar Singh v. State of Haryana (2015) 1 SCC 496, Ajay Kumar Ghoshal v. State of Bihar 2017) 12 SCC 699 judgments and summarised the principles on retrial and formulated as under:
- The Appellate Court may direct a retrial only in ‘exceptional’ circumstances to avert a miscarriage of justice;
- 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;
- 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;
- 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;
- If a matter is directed for re-trial, the evidence and record of the previous trial is completely wiped out; and
- 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.
JOINT TRIAL AND SEPARATE TRIAL
The Supreme Court discussed State of Andhra Pradesh v. Cheemalapati Ganeswara Rao AIR 1963 SC 1850 Chandra Bhal v. The State of UP 1971 (3) SCC 983 Essar Teleholdings Limited v. Central Bureau of Investigation (2015 ) 10 SCC 562.
From these decisions the Supreme Court formulated principles on joint trial and separate trials as under:
- Section 218 provides that separate trials shall be conducted for distinct offences alleged to be committed by a person. Sections 219 – 221 provide exceptions to this general rule. If a person falls under these exceptions, then a joint trial for the offences which a person is charged with may be conducted. Similarly, under Section 223, a joint trial may be held for persons charged with different offences if any of the clauses in the provision are separately or on a combination satisfied;
- While applying the principles enunciated in Sections 218 – 223 on conducting joint and separate trials, the trial court should apply a two-pronged test, namely, (a) whether conducting a joint/separate trial will prejudice the defence of the accused; and/or (b) whether conducting a joint/separate trial would cause judicial delay.
- The possibility of conducting a joint trial will have to be determined at the beginning of the trial and not after the trial based on the result of the trial. The Appellate Court may determine the validity of the argument that there ought to have been a separate/joint trial only based on whether the trial had prejudiced the right of accused or the prosecutrix;
- Since the provisions which engraft an exception use the phrase ‘may’ with reference to conducting a joint trial, a separate trial is usually not contrary to law even if a joint trial could be conducted, unless proven to cause a miscarriage of justice; and
- A conviction or acquittal of the accused cannot be set aside on the mere ground that there was a possibility of a joint or a separate trial. To set aside the order of conviction or acquittal, it must be proved that the rights of the parties were prejudiced because of the joint or separate trial, as the case may be.