# Chaman Lal v. State of U.P

- **Citation:** (2021) 2 ILRA 359
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-22
- **Case number:** Criminal Appeal No. 89 of 1987
- **Bench:** Ved Prakash Vaish, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chaman-lal-v-state-of-u-p-46794
- **Pages:** 5

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) &
Indian Penal Code, 1860-Section 302/34challenge to-conviction-acquittal for want
of trial court record-after a long gap of
360 INDIAN LAW REPORTS ALLAHABAD SERIES
about
39
years,
there
remains
no
possibility of retrial-there remains no
alternative except to close the matter and
acquit the appellant-hearing of appeal in
accordance with the provisions of section
386 Cr.P.C. is not possible.(Para 1 to 23)
B. It is settled law that for deciding the
appeal, perusal of the record of trial court
is necessary and if the record is not
available
and
reconstruction
is
not
possible, then two courses are open to the
appellate court, one is to order for retrial
after setting aside the conviction-the
other is, if there is a long gap, then close
the matter for want of record as the retrial
will also not serve any purpose in the
absence of trial court record. (Para 15 to
23)

The appeal is allowed. (E-5)

List of Cases cited:-

## Text

2 All. Chaman Lal Vs. State of U.P.
359
held that the Act of 1971 impliedly
excludes the power of recall or review.

19. So far as the judgment of the
Division Bench of this Court in the case of
Maharaja Dharmendra Prasad Singh
(supra) is concerned, that was a case in
which despite filing of a caveat by learned
counsel for the respondent, the caveat had
not been noted by the Registry, with the
result that an ex-parte interim order was
passed by the High Court. Considering the
said fact, the High Court after applying the
maxim Actus Curiae Neminem Gravabit
recalled the said order. Thus, the facts and
ratio of the said case are not applicable
here.

20. Likewise, the judgment of the
Apex Court in the case of Pratibha
Industries Limited (supra) was a case in
which the application filed under Section 9
of the Arbitration and Conciliation Act,
1996 (for short, 'Act of 1996') had been
entertained and an injunction had been
granted on the ground that there was an
arbitration clause in the contract. An
arbitrator had also been appointed by the
High Court. An application for recall was
filed
contending
that
there
was
no
arbitration clause and thus the order was
recalled by the Single Judge. Upon an
appeal being filed under Section 37 of the
Act of 1996, the Division Bench set-aside
the order of recall on the ground that there
was no power to review or recall the said
order vested with the Court under the Act
of 1996. Upon the matter being carried to
the Apex Court, the Apex Court held that
once there was no arbitration agreement
consequently the provisions of the Act of
1996 were itself not applicable and hence
proceeded to set-aside the Division Bench
judgment of the High Court. Thus, the very
applicability of the Act of 1996, in which
the order was passed, was held to be
inapplicable by the Apex Court and
accordingly, the order of Single Judge of
High Court recalling his order appointing
the arbitrator was upheld despite there
being no provision in the Act 1996 for
review an order. In the instant case it is not
the case of the applicant/petitioner that the
Act of 1971 is not applicable. Hence, the
judgment
in
the
case
of
Pratibha
Industries Limited (supra) may not be of
any help to the applicant/petitioner.

21.

Considering
the
aforesaid
discussions, it is apparent that this Court
has no power to review or recall the order
dismissing the contempt petition on merits.
Accordingly, the preliminary objection is
upheld and the application for recall of
order dated 20.01.2020 is rejected.
----------
(2021)02ILR A359
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.01.2021

BEFORE

THE HON'BLE VED PRAKASH VAISH, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 89 of 1987

Chaman Lal ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
G.K. Pandey, Anurag Shukla (Ac)

Counsel for the Respondent:
Govt. Advocate

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) &
Indian Penal Code, 1860-Section 302/34challenge to-conviction-acquittal for want
of trial court record-after a long gap of
360 INDIAN LAW REPORTS ALLAHABAD SERIES
about
39
years,
there
remains
no
possibility of retrial-there remains no
alternative except to close the matter and
acquit the appellant-hearing of appeal in
accordance with the provisions of section
386 Cr.P.C. is not possible.(Para 1 to 23)
B. It is settled law that for deciding the
appeal, perusal of the record of trial court
is necessary and if the record is not
available
and
reconstruction
is
not
possible, then two courses are open to the
appellate court, one is to order for retrial
after setting aside the conviction-the
other is, if there is a long gap, then close
the matter for want of record as the retrial
will also not serve any purpose in the
absence of trial court record. (Para 15 to
23)

The appeal is allowed. (E-5)

List of Cases cited:-

1. Pati Ram & anr. Vs St. of U.P. (2010) Cri. L.
J. 2767

2. Sita Ram & ors. Vs St. of U.P. (1981) Cri.
L.J.65

3. Shyam Deo Pandey Vs St. of Bih.(1971) 1
SCC 855

(Delivered by Hon'ble Mrs. Saroj Yadav, J.)

1. This criminal appeal has been
preferred by the appellant accused
namely Chaman Lal, son of Shri Satya
Narain against the judgemnt and order
dated 29.1.1987 passed in Sessions
Trial No.352 of 1981 ( State Vs.
M.P.Singh and another ) under Section
302 I.P.C. read with Section 34 I.P.C.
convicting the appellant to undergo life
imprisonment.

2. While admitting the appeal on
5.2.1987,
this
Court
enlarged
the
appellant on bail. During pendency of
the
appeal,
the
appellant/accused
absconded and this court issued non
bailable warrant against him and he
could be arrested after a long time on
10.2.2020. Now appellant/accused is in
jail.

3. When the appeal was put up for
hearing, the record of the trial court was
summoned but the record could not be
received and it was reported that the
trial court record had already been
weeded out and only the impugned
judgement is available.

4.

The
court
ordered
for
reconstruction
of
the
record
and
attempts were made at various levels
for the same but all proved a futile
exercise. The District Judge, Lucknow
vide its letter no.594/Antim Jaanch
No.30113 dated 14.2.2019 reported that
the reconstruction of the record of
Sessions Trial No.352 of 1981 is not
possible. Alongwith above report of the
District Judge, the report of the officerin-charge
of
the
record
room
(Criminal), District Court, Lucknow has
also been attached and according to that
report also, the reconstruction of the
record is not possible.

5. The attempts were also made at
the level of prosecution to get the
record re-constrcuted but all efforts
remained unsuccessful to reconstruct
the record. Hence, on the basis of the
above quoted material, it is established
that the record has already been
weeded out and the reconstruction of
that record is not possible.

6. Heard learned Amicus Curiae
Shri Anurag Shukla appearing for the
appellant and Shri Chandra Shekhar
2 All. Chaman Lal Vs. State of U.P.
361
Pandey,
learned
A.G.A.
for
the
respondent State.

7. Learned Amicus Curiae submits
that since the record is not available, the
appeal cannot be decided on merits and
even if merit is considered only on the
basis of the impugned judgement available
on record, there is no cogent evidence to
sustain the conviction made because the
trial court has convicted the appellant
accused on the basis of the extra judicial
confession allegedly made and acquitted
the another accused on whose instigation,
the present appellant accused has been
alleged to commit the crime.

8. On the other hand, learned A.G.A.
submitted that the appellant has committed
the murder of Shri A.U.Siddiqui and has
been convicted by the trial court on the
basis of the evidence produced by the
prosecution. The appellant accused cannot
be acquitted only for want of record.

9. Learned Amicus Curiae has relied
upon the judgments in the case of Pati Ram
and another Vs. State of U.P. : 2010 Cri.
LJ 2767, ii). Sita Ram and others Vs. State
of U.P. : 1981 Cri. LJ 65, and iii). Shyam
Deo Pandey Vs. State of Bihar : 1971 (1)
SCC 855.

10.

We
have
considered
the
submissions made by both the sides and
perused the record and the case laws cited
above.

11. It is undisputed that the record of
the trial court has been weeded out and the
reconstruction of that record is not possible
as has been reported by the concerned
authorities, noted above.

12. It is settled law that for deciding
the appeal, perusal of the lower court
record is necessary.

13. In the case of Shyam Deo Pandey
Vs. State (supra), the Hon'ble Apex Court
has held that perusal of the record is
necessary for the appellate court to
adjudicate
upon
the
correctness
or
otherwise of the judgement against whom
appeal is preferred.

The relevant paragraph of the
judgment runs as under :-

"18.Coming
to
section
425,
which has already been quoted above, it
deals with powers of the appellate court in
disposing of the appeal on merits. It is
obligatory for the appellate court to send
for the record of the case, if it is not
already before the court. This requirement
is necessary to be complied with to enable
the
court
to
adjudicate
upon
the
correctness or otherwise of the order or
judgement appealed against not only with
reference to the judgement but also with
reference to the records which will be the
basis on which the judgement is founded.
The correctness or otherwise of the
findings recorded in the judgment on the
basis of the attack made against the same,
cannot be adjudicated upon without
reference to the evidence, oral and
documentary and other materials relevant
for the purpose. The reference to "such
record" in "after perusing such record" is
to the record of the case sent for the
appellate court."

14. Thus, it is clear that for deciding
the appeal, it is incumbent upon the
appellate court to call for the record and to
peruse the record.
362 INDIAN LAW REPORTS ALLAHABAD SERIES

15. As noted above, in the present
matter, the record has already been weeded
out and the reconstruction is not possible.

16. Similar situation arose in the case
of Sita Ram and others Vs. State (supra)
where the Division Bench of this Court
held as under :-

"On a careful consideration of
the relevant statutory provisions and the
principles laid down in the cases cited
before us, we are of the opinion that
where it is not possible to reconstruct the
record which has been lost or destroyed
it is not legally permissible for the
appellate court to affirm the conviction
of the appeal since perusal of the record
of the case is one of the essential
elements of the hearing of the appeal.
The appellant has a right to try to satisfy
the appellate court that the material on
record did not justify his conviction and
that right cannot be denied to him. We
are further of the opinion that if the
time gap between the date of the incident
and date on which the appeal comes up
for hearing is short, the proper course
would be to direct retrial of the cases
since witnesses normally would be
available and it would not cause undue
strain on the memory of the witnesses.
Copies of the F.I.R., statements of the
witnesses under Section 161 Cr.P.C.,
reports of medical examinations etc.
would also be normally available if the
time gap between the incident and the
order of retrial is not unduly long.
Where, however the matter comes up for
consideration after a long gap of years,
it would neither be just nor proper to
direct retrial of the case, more so when
even copies of the F.I.R. and statements
of the witnesses under Section 161
Cr.P.C. and other relevant papers have
been weeded out or are otherwise not
available. In such a situation even if
witnesses are available, apart from the
fact that heavy strain would be put on
the memory of the witnesses, it would
not be possible to test their statements
made at the trial with reference to the
earlier version of the incident and the
statements of witnesses recorded during
investigation. Not only that the accused
will
be
prejudiced
but
even
the
prosecution
would
be
greatly
handicapped in establishing its case and
the trial would be reduced to a mere
formality entailing agony and hardships
to the accused and waste of time, money
and energy of the State."

17. Again, in Pati Ram and another
Vs. State of U.P. (supra), in almost
similar situation, this court held as under
:-

" I have given my thoughtful
consideration to the rival submissions
made by parties' counsel. It is true that
another Bench of this Court in case of Raj
Narayan Pandey (supra) has decided the
appeal on merit in the absence of lower
court record on the basis of the impugned
judgement only, but in my considered
opinion, the appeal cannot be decided on
merit in the absence of lower court record.
Unless the evidence is available for
perusal, in my opinion, the appeal cannot
be considered and decided on merit merely
on the basis of the lower court judgement,
as evidence is essentially required to
consider the merit of the impugned
judgement and merely on the basis of the
said judgment, no order on merit can be
passed in an appeal."

18. Thus, it is settled law that for deciding
the appeal, perusal of the record of trial court is
2 All. Ram Teerth Vs. State of U.P.
363
necessary and if the record is not available and
reconstruction is not possible, then following
two courses are open to the appellate court :-

(i). To order for re trial after setting
aside the conviction; or,

ii). If there is a long gap, then close
the matter for want of record as the retrial will
also not serve any purpose as the relevant
documents are not available.

It is also settled law that appeal
cannot be decided in the absence of trial court
record.

19. In the present matter, the merit of the
case cannot be looked into for want of record.
The report of the District Judge, Lucknow and
the officer-in-charge of the record room have
established that the construction of the record is
not possible.

20. In the present matter, the incident took
place in the year 1981 and after concluding the
trial, the accused was convicted on 29.1.1987.
Thereafter this appeal was filed on 4.2.1987 and
record was called for but record could not be
made available and several efforts were made to
get
record
reconstructed
but
remained
unsuccessful.

21. Now about 33 years have passed
since conviction under challenge. It is a long
gap. Since no paper relating to this case is
available except the impugned judgement, there
remains no possibility of retrial at this stage,
after a long gap of about 39 years since the
occurrence of the incident.

22. It is clear that in these circumstances,
retrial will be a futile exercise. Therefore, there
remains no alternative except to close the matter
and acquit the appellant, as hearing of the
appeal in accordance with the provisions of
Section 386 Cr.P.C. is not possible. The order
of retrial will also not serve any purpose as in
the absence of relevant record, it is impossible
for the prosecution to establish the charges
against the appellant/accused.

23. Resultantly, the appeal is allowed.

24. The impugned judgment and order
dated 29.1.1987 passed in Sessions Trial
No.352 of 1981 ( State Vs. M.P.Singh and
another ) under Section 302 I.P.C. read with
Section 34 I.P.C. convicting the appellant to
undergo life imprisonment, is hereby set aside
and the appellant Chaman Lal, son of Satya
Narain is hereby acquitted of the offence under
Section 302 I.P.C. for want of trial court record
and there being no possibility of the retrial. The
appellant is in jail. He shall be released
immediately, if not required in any other case.

25. Let copy of this judgement be sent to
the Superintendent of Jail concerned.

26. Office is directed to send copy of this
judgment to the trial court concerned.

27. The learned Amicus Curiae shall be
paid remuneration as per rules.

The relevant record i.e. impugned
judgment be also sent back to trial court
concerned.
----------
(2021)02ILR A363
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.01.2021

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 209 of 2021

Ram Teerth ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party