# Bhajan Lal & others (In Jail) v. State of U.P

- **Citation:** (2007) 3 ILRA 665
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-04-19
- **Case number:** Criminal Appeal No. 476 of 1979
- **Bench:** Amar Saran, R.N. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhajan-lal-others-in-jail-v-state-of-u-p-41058
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section 386Criminal
Proceedings-Practice
&
Procedure-Re-trial or reconstruction of
Record-In case Original record-lost or
destroyed due to fire-general direction
issued to the S.S.P/S.P. to preserve the
police paper and not to weed out or
otherwise destroy-Where the original
record of Trial reported missing-Distt.
Judge
directed
to
complete
re-trial
within 4 month.

Held- Para-8 & 9

In this view of the matter we direct this
case to be remitted back to the trial
Court for re-trial which may then dispose
of the matter on accordance with the
directions of the apex Court in the case
of State of U.P. Vs. Abhai Raj Singh and
another (supra).

Before parting, we would like to observe
that a disturbing fact has been brought
to our notice, that this is not an isolated
case where the record of the case has
gone missing or it has been destroyed
and where efforts are being made by this
Court to order reconstruction of records
or re-trial in light of the directions in
Abhai Raj singh's case, and that there
are in fact a large number of such cases
where
the
records
have
become
untraceable. As often this exercise is
undertaken long after the record was
reported lost, often even the police
papers such as FIR, inquest, 161 Cr. P.C.
statements, postmortem report etc. in
the case diary which may have facilitated
reconstruction or re-trial have also been
lost or destroyed or weeded out, and
invariably there is no co-operation from
the Counsel for the accused and even
from the prosecution Counsel or the
State, it has enabled guilty person to
escape unpunished, who may even have
been instrumental in the disappearance
of the records in their cases. We
therefore think that the Registry to issue
a circular to all the district judges to
immediately communicate to the police
stations concerned where the crime was
registered through S.S.P./S.P.s in charge
of the districts to preserve the police
paper and records in such cases, and
ensure that they are not weeded out or
lost or otherwise destroyed in cases
where the trial court records, especially
where foul play may be suspected. A
communication
should
also
be
immediately sent to the High Court and
the Registry for obtaining immediate
orders
from
the
bench
concerned
directing the concerned District Judges
to initiate proceedings for reconstruction
of the lost record, or re-trial so that
timely action may be taken for ensuring
compliance of the Apex Court's orders in
Abhai Raj Singh's case in letter and
spirit, and for ensuring that the guilty do
not escape punishment and the process
of
justice
is
not
derailed
by
the
machinations of wily and unscrupulous
accused.
Case law discussed:
AIR 2004 SC-3235

## Text

3 All] Bhajan Lal and others V. State of U.P.
665
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.04.2007

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE R.N. MISRA, J.

Criminal Appeal No. 476 of 1979

Bhajan Lal & others ...Appellants(In Jail)
Versus
State of U.P.

...Respondents

Counsel for the Appellants:
Sri P.N. Misra

Counsel for the Respondents:
A.G.A.

Code of Criminal Procedure-Section 386Criminal
Proceedings-Practice
&
Procedure-Re-trial or reconstruction of
Record-In case Original record-lost or
destroyed due to fire-general direction
issued to the S.S.P/S.P. to preserve the
police paper and not to weed out or
otherwise destroy-Where the original
record of Trial reported missing-Distt.
Judge
directed
to
complete
re-trial
within 4 month.

Held- Para-8 & 9

In this view of the matter we direct this
case to be remitted back to the trial
Court for re-trial which may then dispose
of the matter on accordance with the
directions of the apex Court in the case
of State of U.P. Vs. Abhai Raj Singh and
another (supra).

Before parting, we would like to observe
that a disturbing fact has been brought
to our notice, that this is not an isolated
case where the record of the case has
gone missing or it has been destroyed
and where efforts are being made by this
Court to order reconstruction of records
or re-trial in light of the directions in
Abhai Raj singh's case, and that there
are in fact a large number of such cases
where
the
records
have
become
untraceable. As often this exercise is
undertaken long after the record was
reported lost, often even the police
papers such as FIR, inquest, 161 Cr. P.C.
statements, postmortem report etc. in
the case diary which may have facilitated
reconstruction or re-trial have also been
lost or destroyed or weeded out, and
invariably there is no co-operation from
the Counsel for the accused and even
from the prosecution Counsel or the
State, it has enabled guilty person to
escape unpunished, who may even have
been instrumental in the disappearance
of the records in their cases. We
therefore think that the Registry to issue
a circular to all the district judges to
immediately communicate to the police
stations concerned where the crime was
registered through S.S.P./S.P.s in charge
of the districts to preserve the police
paper and records in such cases, and
ensure that they are not weeded out or
lost or otherwise destroyed in cases
where the trial court records, especially
where foul play may be suspected. A
communication
should
also
be
immediately sent to the High Court and
the Registry for obtaining immediate
orders
from
the
bench
concerned
directing the concerned District Judges
to initiate proceedings for reconstruction
of the lost record, or re-trial so that
timely action may be taken for ensuring
compliance of the Apex Court's orders in
Abhai Raj Singh's case in letter and
spirit, and for ensuring that the guilty do
not escape punishment and the process
of
justice
is
not
derailed
by
the
machinations of wily and unscrupulous
accused.
Case law discussed:
AIR 2004 SC-3235

(Delivered by Hon'ble Amar Saran, J.)

1. Heard Sri P.N. Misra for the
appellant and learned AGA.
666 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
This appeal has been filed for
challenging the conviction and sentence
of the appellants to imprisonment for life
under sections 302 read with 34 IPC by an
order dated 30.1.1979 passed by the IV
Addl.
District
and
Sessions
Judge,
Bareilly, in ST No. 105 of 1978. After
summoning the record by this Court a
report was received from the Officer in
charge, Record Room, Bareilly judgeship,
dated 20.1.1984 that the record was not
available after the fire incident which
occurred in the civil courts building at
Bareilly in the night of 18/19.11.1979.

2. An order was passed thereafter by
a Division Bench of this Court dated
22.11.1993 for reconstruction of the
record within 6 weeks. However, in spite
of the said order and the reminder dated
31.3.2004 passed by another Division
Bench, no report of the Sessions Judge
was received, until an order dated
21.9.1995 was passed by the Bench of
Hon. G.P. Mathur and Hon. Kundan
Singh, JJ. directing the office to send a
reminder to the district judge within 3
days who was to submit a report within 2
weeks and also to explain why the orders
passed by the Court on 22.11.1993 and
31.3.1994 had not been complied with.
Learned Sessions Judge was also directed
to make an enquiry from the police office
as to whether any paper of the case were
available in that office or not. Thereafter,
it appears, a report dated 4.11.1995 of the
District Judge, Bareilly, has been received
stating that it was not possible to
reconstruct the record and the report of
the concerned police station also shows
that no record relevant to the case was
available with the police office.

3. However, our attention has been
drawn to the decision of the apex Court in
State of U.P. Vs. Abhai Raj Singh and
another: [AIR 2004 SC 3235] which was
another case of burnt record as a result of
the same fire which had broken out in the
Bareilly civil Court on 18/19.22.1979
wherein the record of present appeal was
also destroyed. In Abhai Raj Singh's case
this Court had passed an order on
1.11.1993 for reconstruction of the record
at the Session Judge level. However,
when no response was received from the
Session Judge within three months, the
High
Court
after
noting
that
no
communication had been received from
the Session judge, had drawn an inference
that reconstruction of the record was not
possible, and had passed an order dated
25.2.1994 that the appellants shall not be
arrested, and were not required to
surrender to their bail bonds, which were
cancelled.

4. The Apex Court in Abhay Raj
Singh's case (supra) declared the order to
be illegal and observed as follows in
paragraph 6:

"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 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 a trial.
For exercise of the powers in case of first
two categories, obviously a finding on
3 All] Bhajan Lal and others V. State of U.P.
667
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 retrial after reconstruction of the records if
in spite of positive and construction
efforts to reconstruct the records the same
was impossible."

5. The apex Court had thereafter
remitted the matter to the High Court for
fresh consideration and directed that the
High Court to direct the reconstruction of
the record within a period of 6 months
from all available or possible sources. In
case it found that the reconstruction was
not practicable, then it might order re-trial
and from that stage the law was to take its
normal course. However, it was pointed
out that if re-trial and fresh adjudication
by the sessions court was also rendered
impossible due to loss of vital important
basic records, only in that event the earlier
judgement of the High Court would apply
and the matter would stand closed. The
relevant part of paragraph 10 of the order
of the apex court read as follows:

"If it finds that reconstruction 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 basics records, in
that case and situation only, the direction
given in the impugned judgement shall
operate and the matter shall stand
closed."
6. However Sri P.N. Mishra
vehemently contended that this Court
should itself call for a fresh report and
decide whether the basic documents
which
would
facilitate
are-trial
are
available or not and in case the same are
not available it should itself pass the order
closing the case in the light of Abhai Raj
Singh's case.

7. We find that already this matter
has become extremely old and the appeal
is pending since 1979. We have also seen
the great difficulties and the number of
orders needed before the communication
was received from the District Judge
Bareilly on 4.11.1995 that reconstruction
of the record was not possible. If we again
initiate the exercise again for enquiring
whether basic documents can be procured
from any place or not for facilitating retrial further time will be lost before we
can obtain an appropriate response from
the District Judge concerned. Furthermore
we think the district Court would be in the
best position to decide whether re-trial
was possible in the context of the basic
documents being available or unavailable.

8. In this view of the matter we
direct this case to be remitted back to the
trial Court for re-trial which may then
dispose of the matter on accordance with
the directions of the apex Court in the
case of State of U.P. Vs. Abhai Raj Singh
and another (supra).

9. Before parting, we would like to
observe that a disturbing fact has been
brought to our notice, that this is not an
isolated case where the record of the case
has gone missing or it has been destroyed
and where efforts are being made by this
Court to order reconstruction of records or
re-trial in light of the directions in Abhai
668 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Raj singh's case, and that there are in fact
a large number of such cases where the
records have become untraceable. As
often this exercise is undertaken long after
the record was reported lost, often even
the police papers such as FIR, inquest,
161 Cr. P.C. statements, postmortem
report etc. in the case diary which may
have facilitated reconstruction or re-trial
have also been lost or destroyed or
weeded out, and invariably there is no cooperation from the Counsel for the
accused and even from the prosecution
Counsel or the State, it has enabled guilty
person to escape unpunished, who may
even have been instrumental in the
disappearance of the records in their
cases. We therefore think that the
Registry to issue a circular to all the
district
judges
to
immediately
communicate
to
the
police
stations
concerned where the crime was registered
through S.S.P./S.P.s in charge of the
districts to preserve the police paper and
records in such cases, and ensure that they
are not weeded out or lost or otherwise
destroyed in cases where the trial court
records, especially where foul play may
be suspected. A communication should
also be immediately sent to the High
Court and the Registry for obtaining
immediate
orders
from
the
bench
concerned directing the concerned District
Judges
to
initiate
proceedings
for
reconstruction of the lost record, or retrial so that timely action may be taken for
ensuring compliance of the Apex Court's
orders in Abhai Raj Singh's case in letter
and spirit, and for ensuring that the guilty
do not escape punishment and the process
of justice is not derailed by the
machinations of wily and unscrupulous
accused.

10. We therefore order the Registrar
General to take steps for issuing a circular
to
all
the
District
Judges
for
communication to all subordinate Courts
for compliance on the lines suggested
herein above, and to take the other steps
suggested.

11. Office is also directed to
communicate this order and papers in the
case for re-trial as directed herein above
in the present case to the District Judge
Bareilly within a week who shall try to
get the re-trial completed, if it is possible
within 4 months and report compliance to
this Court.

12. With these observation this
appeal is disposed of.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.09.2007

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal No. 529 of 2006

Mohd. Tabib Khan ...Petitioner-Appellant
Versus
State of U.P. and others ...Respondents

Counsel for the Appellant:
Sri Ashok Khare
Smt. Anita Tripathi

Counsel for the Respondents:
Sri S.K. Yadav
Sri P.K. Singh
Sri S.S. Sisodiya
Sri R.K. Ojha
S.C.

High Court Rules-Chapter VIII Rule-5Special Appeal- against the Order/