# Chhotai & Ors v. State of U.P

- **Citation:** (2023) 9 ILRA 606
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-23
- **Case number:** Criminal Appeal No. 234 of 2023
- **Bench:** Rahul Chaturvedi, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chhotai-ors-v-state-of-u-p-50712
- **Pages:** 14

## Headnote

Law-Criminal
Procedure
Code,1973-Section 374(2) - Indian Penal
Code, 1860-Sections 147, 302 & 306alternative charge-de novo trial-In the
present case the farming of charge have
been done on 12.10.2022, testimonies of
those witnesses were over much prior to
that date-Not only this, accused person
have got their statement recorded under
Section 313 Cr.P.C.-It hardly needs to be
demonstrated, that the provision under
Section 216 & 217 Cr.P.C. are mandatory
in nature, as they not only subserve the
requirement of the principles of natural
justice but guarantee and important right
which is given to the accused persons to
defend themselves appropriately by giving
them full opportunity-Cross examination
of the witnesses in the process is an
important facet of this right- Credibility of
any witness can establish only after the
said witness put to the cross examination
by the accused person-No amount of
concession or discount by the learned trial
judge would replace this valuable right of
the accused appellants- In the instant
case, there is no cross examination so far
as the alternative charge under Section
302 IPC was ever done -addition and/or
substitution of such charge would bound
to create a prejudice to the appellants-
Such a charge has to be treated as original
charge- In order to take care of the said
prejudice, it was incumbent upon the
prosecution
to
recall
the
witnesses,
9 All. Chhotai & Ors. Vs. State of U.P.
607
examined them in the context of the
newly framed charge under Section 302
IPC and allow the accused persons to
cross examine those witnesses-Nothing of
that sort has ever happened- thus there
could not have been any conviction under
Section 302 IPC could be passed by
learned trial judge while passing the
judgment,

thus
liable
to
be
set
aside.(Para 1 to 38)

B. The appellate court hearing a criminal
appeal from a judgment of conviction has
power to order the retrial of the accused
under Section 386 of the Code. That is
clear from the bare language of Section
386(b). Though such power exists, it
should not be exercised in a routine
manner. A 'de novo trial' or retrial is not
the second trial; it is continuation of the
same trial and same prosecution. The
guiding factor for retrial must always be
demand of justice. Obviously, the exercise
of power of retrial underSection 386(b) of
the Code, will depend on the facts and
circumstances of each case for which no
strait jacket formula can be formulated
but the appeal court must closely keep in
view that while protecting the right of an
accused to fair trial and due process, the
people who seek protection of law do not
lose hope in legal system and the interests
of
the
society
are
not
altogether
overlooked.(Para 28 to 33)

C. An order for retrial of a criminal case is
made in exceptional cases, and not unless
the appellate Court is satisfied that the
Court trying the proceeding had no
jurisdiction to try it or that the trial was
vitiated
by
serious
illegalities
or
irregularities
or
on
account
of
misconception
of
the
nature
of
the
proceedings and on that account in
substance there had been no real trial or
that the Prosecutor or an accused was, for
reasons over which he had no control,
prevented from leading or tendering
evidence material to the charge, and in
the interests of justice the appellate Court
deems it appropriate, having regard to the
circumstances of the case, that the
accused should be put on his trial again.
An order of re-trial wipes out from the
record the earlier proceeding, and exposes
the person accused to another trial which
affords the prosecutor an opportunity to
rectify the infirmities disclosed in the
earlier trial, and will not ordinarily be
countenanced when it is made merely to
enable the prosecutor to lead evidence
which he could but has not cared to lead
either
on
account
of
insufficient
appreciation of the nature of the case or
for other reasons.(Para 31)

The appeal is allowed. (E-6)
List of Cases

## Text

_Characters 0–39,798 of 46,514. This is a partial read: ask again with offset=39798 for what follows._

606 INDIAN LAW REPORTS ALLAHABAD SERIES
of events that occurred at the time of the
arrest. Failure to examine Babu Ram Pal
before the learned trial court drawing
adverse inference to be taken in view of the
illustration (g) to Section 114 of the Indian
Evidence Act, coupled with the fact that
proper procedure has not been followed by
the trap team.

The site of the recovery i.e. place
of occurrence is disputed in view of the
testimony of the witnesses i.e. PW-1 and
PW-2. Demand or acceptance of bribe has
not been proved by the prosecution and the
contradictory statements of the prosecution
witnesses particularly PW-1, PW-8 and
PW-9 make the recovery doubtful. Thus, I
am not inclined to uphold the judgment
under challenge.

15. The appeal is allowed. The
impugned judgment and order dated
23.01.2020 and order of conviction dated
24.01.2020 passed in criminal case no.
58/2003 (The State of UP Vs. Sameer
Singh) passed by Special Judge, Anti
Corruption, Court no. 5, Lucknow is set
aside. The appellant Sameer Singh is
acquitted of the offences punishable under
Section 7, 13(d) read with Section 13(2) of
the
Prevention
of
Corruption
Act.
Appellant is on bail. His bail bonds are
cancelled and sureties discharged.

Let a copy of this judgment be
sent to the District Court concerned along
with the lower court record.
----------
(2023) 9 ILRA 606
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.08.2023

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 234 of 2023

Chhotai & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Sati Shanker Tripathi, Sri A.K. Mishra.
Sri Mohd. Haider

Counsel for the Opposite Party:
G.A.

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section 374(2) - Indian Penal
Code, 1860-Sections 147, 302 & 306alternative charge-de novo trial-In the
present case the farming of charge have
been done on 12.10.2022, testimonies of
those witnesses were over much prior to
that date-Not only this, accused person
have got their statement recorded under
Section 313 Cr.P.C.-It hardly needs to be
demonstrated, that the provision under
Section 216 & 217 Cr.P.C. are mandatory
in nature, as they not only subserve the
requirement of the principles of natural
justice but guarantee and important right
which is given to the accused persons to
defend themselves appropriately by giving
them full opportunity-Cross examination
of the witnesses in the process is an
important facet of this right- Credibility of
any witness can establish only after the
said witness put to the cross examination
by the accused person-No amount of
concession or discount by the learned trial
judge would replace this valuable right of
the accused appellants- In the instant
case, there is no cross examination so far
as the alternative charge under Section
302 IPC was ever done -addition and/or
substitution of such charge would bound
to create a prejudice to the appellants-
Such a charge has to be treated as original
charge- In order to take care of the said
prejudice, it was incumbent upon the
prosecution
to
recall
the
witnesses,
9 All. Chhotai & Ors. Vs. State of U.P.
607
examined them in the context of the
newly framed charge under Section 302
IPC and allow the accused persons to
cross examine those witnesses-Nothing of
that sort has ever happened- thus there
could not have been any conviction under
Section 302 IPC could be passed by
learned trial judge while passing the
judgment,

thus
liable
to
be
set
aside.(Para 1 to 38)

B. The appellate court hearing a criminal
appeal from a judgment of conviction has
power to order the retrial of the accused
under Section 386 of the Code. That is
clear from the bare language of Section
386(b). Though such power exists, it
should not be exercised in a routine
manner. A 'de novo trial' or retrial is not
the second trial; it is continuation of the
same trial and same prosecution. The
guiding factor for retrial must always be
demand of justice. Obviously, the exercise
of power of retrial underSection 386(b) of
the Code, will depend on the facts and
circumstances of each case for which no
strait jacket formula can be formulated
but the appeal court must closely keep in
view that while protecting the right of an
accused to fair trial and due process, the
people who seek protection of law do not
lose hope in legal system and the interests
of
the
society
are
not
altogether
overlooked.(Para 28 to 33)

C. An order for retrial of a criminal case is
made in exceptional cases, and not unless
the appellate Court is satisfied that the
Court trying the proceeding had no
jurisdiction to try it or that the trial was
vitiated
by
serious
illegalities
or
irregularities
or
on
account
of
misconception
of
the
nature
of
the
proceedings and on that account in
substance there had been no real trial or
that the Prosecutor or an accused was, for
reasons over which he had no control,
prevented from leading or tendering
evidence material to the charge, and in
the interests of justice the appellate Court
deems it appropriate, having regard to the
circumstances of the case, that the
accused should be put on his trial again.
An order of re-trial wipes out from the
record the earlier proceeding, and exposes
the person accused to another trial which
affords the prosecutor an opportunity to
rectify the infirmities disclosed in the
earlier trial, and will not ordinarily be
countenanced when it is made merely to
enable the prosecutor to lead evidence
which he could but has not cared to lead
either
on
account
of
insufficient
appreciation of the nature of the case or
for other reasons.(Para 31)

The appeal is allowed. (E-6)
List of Cases cited:

1. Ajay Kumar Ghoshal & ors. Vs St. of Bih. &
anr. (2017)12 SCC 699

2.
R.Rachaiah
Vs
Home
Secy.
Banglore
(2017)3SCC(Crl.)710=2016 12SCC172

3. Shamnsaheb M. Multtani Vs St. of Karn.(
2001) 1 SCC (Crl.) 358

4. Ukha Kolhe Vs St. of Mah. (1963) AIR SC 1531

5. St. of M.P. Vs Bhooraji (2001) SCC (Crl.) 1373

6. Zahira Habibullah H. Sheikh Vs St. of Guj.
(2004) SCC (Crl.) 999

7. Mohd. Hussain Vs St. of NCT Delhi (2012) 3
SCC (Crl.) 1139

(Delivered by Hon'ble Rahul Chaturvedi, J.
&
Hon'ble Mohd. Azhar Husain Idrisi, J.)

1. Heard Sri A.K. Mishra, Sri Sati
Shanker Tripathi, learned counsel for the
appellants and learned A.G.A. for the State
and perused the record.

2. Learned AGA submits that he has
filed counter affidavit on 30.01.2023.

3. Learned counsel for the appellants
candidly declined to file any rejoinder
608 INDIAN LAW REPORTS ALLAHABAD SERIES
affidavit to the counter affidavit filed by the
State and requested the Court to decide the
case on merits.

4. This appeal is preferred by the
appellants,
namely,(i)
Chhotai
son
of
Panchu, (ii) Yogesh Kumar son of
Rajendra Prasad, (iii) Shivdhari Pasi son of
Panchu, (iv) Budhani son of Panchu, and
(v) Rajendra Prasad son of Panchu, all
resident of village Akorha, P.S. Oonjh, District
Bhadohi, who are languishing in jail since
19.11.2022 pursuant to the judgment and order
passed by Additional Sessions Judge/ Special
Judge (SC/ST Act), Court No.II, Bhadohi,
Gyanpur while deciding the S.T. No. 118 of
2017 (State Vs. Chhotai and others) arising out
of case crime no.43 of 2016, under Section
302 IPC, Police Station-Oonjh, DistrictBhadohi (Gyanpur), convicting and sentencing
the appellants under Section 302 IPC for life
imprisonment and a fine of Rs. 25,000/ each
and in case of default, one year additional
rigorous imprisonment were awarded to the
appellants.

5. Learned counsel for the appellants
has raised a purely question of law
challenging the legality and authenticity of
the impugned judgment & conviction order
passed by the learned trial court. Responding
to the submissions advanced by learned
counsel for the appellant that, the learned trial
judge has given complete go by to the
established principles of law and the
procedure, resulting into a grave miscarriage
and failure of justice to the appellants. The
procedure adopted by the learned trial judge
is not only fallacious and contains number of
pit falls, against the principles of natural
justice, which is against cardinal principles of
Code of Criminal Procedure.

6. Before scrutinizing the legality and
validity of the impugned judgment, it is
imperative to give a bird's eye view to the
factual aspect of the issue to appreciate the
controversy
involved
in
its
correct
perspective.

FACTUAL
MATRIX
OF
THE
CASE

7. The aforesaid trial started rolling
after submission of charge sheet by the
police in case crime no. 43 of 2016 under
Section 306 IPC, P.S. Oonjh, District
Bhadohi.

8. Submission advanced by the
learned counsel for the appellants is that,
one Behari Pasi son of Dev Saran Pasi of
P.S. Oonjh, Bhadohi on 20.03.2016 along
with his brother Lalloo were going to
irrigate his field around 11.00 in the night,
all of sudden under the mango tree they
heard some unusual noise and in the light
of the torch, they have seen that their son
Jai Prakash after killing him were trying to
hang his dead body over the tree. In this
Yogesh Kumar, Rajendra Prasad, Budhani,
Chhotai, Shivdhari all are sons Panchu
were involved in this transaction. When
inquired from them then they told that the
deceased was in the love with their
daughter Mala and that is why, they have
eliminated him. After the incident all of
them fled away from the sight. The
informant and his brother went to the spot
and have seen that Jai Prakash was died
and his dead body was taken down from
the tree.

9. On this written tehrir, on
21.03.2016 a case crime no. 43 of 2016 was
registered under Section 147 and 302 IPC
against aforesaid named accused appellants
but the police after conducting the thorough
probe have submitted a report under
9 All. Chhotai & Ors. Vs. State of U.P.
609
Section 173(2) Cr.P.C. in Section 306 IPC
against accused-appellants.

10. On 07.07.2017, the learned trial
court after committal of the case have
framed the charges under Section 306 IPC
only. Thereafter inordinate delay of almost
more than five years of the trial on
12.10.2022 prosecution woke up and
moved an application for amending the
charge. An alternative charge under Section
302 IPC was framed against named
accused appellants.

It is urged by the learned counsel
for the appellants that the entire trial was
conducted, keeping in view Section 306
IPC but at the fag end of the trial, Section
302 IPC was inserted among array of the
Sections. Surprisingly, the appellants were
eventually convicted without adhering the
mandatory provision under Sections 216 &
217 Cr.P.C. by the learned trial judge,
causing grave miscarriage of justice to the
appellants.

11. From the judgement impugned, as
many as eight witnesses and eleven
documents were produced, which were
exhibited to establish the case of the
prosecution. From the judgement, it was
urged that the accused appellants that in
'furtherance of the common object' they
have eliminated the deceased and hanged
his dead body over the tree with the intent
to give colour of suicide. This incident was
witnessed by the informant Behari Pasi and
his brother Lalloo, who have given ocular
testimony that the deceased was nurturing a
tender relationship with the daughter of
Chhotai, namely, Mala and in order to save
the dignity and honour of his family, all the
accused appellants wiped off the deceased
in the name of "honour killing".

12. The post mortem was conducted
by Dr. Abhay Singh but on account of his
demise during trial, the post mortem report
was proved by PW-5 Udai Narain Verma,
Pharmacist who identified the post mortem
report, its contents and the signature of late
Dr. Abhay Singh. As per the post mortem
report, there is a "ligature mark around
upper neck around whole enterior neck and
upto left mastoid process and right side
towards posterior side of neck up to mid
jaw".

However, the doctor has opined
the immediate cause of the death of the
deceased is as asphyxia on account of ante
mortem (HANGING).

13. Fact remains, that the charge sheet
was submitted under Section 306 IPC and
the original charge were framed on
07.07.2017. The entire trial too was
conducted keeping in view section 306 IPC
upto the stage of recording of statement
under Section 313 Cr.P.C., but all of
sudden, an application was moved by the
prosecution, resultantly, Section 302 IPC
was added as alternative charge, as surprise
to the accused-appellants.

14. Though, the case history of the
case is quite lengthy, having regard to the
aspect which, we intent to focus on and
the fact that on that aspect only, this
appeal warrants to succeeds, it is not
necessary to burden the judgment with
unnecessary factual details, we would
therefore, be eschewing those facts,
which are irrelevant for our purpose and
would be taking record of such facts
which would be relevant to the issue,
which we intent to focus.

LEGAL ASPECT OF THE ISSUE
610 INDIAN LAW REPORTS ALLAHABAD SERIES

15. (I) The basic and moot
question of law is for the determination in
the present case is that altered or added
charges if causing prejudice to the accused,
trial has to proceed by terming the altered
or added charges as original charge. If
altered or added charges altogether new
one the new trial is insisted in order to take
care of such anticipated prejudice to the
appellants, it is incumbent upon the
prosecution to recall witnesses, examine
them in the context of charge under Section
302 IPC and allow accused person to cross
examine those witnesses.

(II) If the charges is altered by
new charge prejudicing the accused and
the de-novo trial is not conducted denying
the opportunity of cross examination to the
accused, the entire proceeding including
the conviction would be vitiated.

(III) Charges under Section 306
and 302 IPC cannot stand together.

16. The prosecution has laid his
evidence keeping in view to establish the
guilt of the accused appellants under
Section 306 IPC and when the matter was
ripe for final arguments, after recording the
statement of the accused appellants under
Section 313 Cr.P.C., an application 86Kha
was filed by the prosecution and its
objection 89Kha was moved by the
defense. On 01.10.2022, learned Sessions
Judge, SC/ST Act, Court No.2 Bhadohi
Gyanpur in S.T. No. 118 of 2017 (State Vs.
Chhotai and others) under Section 306 IPC
on 01.10.2022 have allowed the application
86Kha directing to add/alter the charge to
Section 302 IPC. The Court has occasion to
go through the aforesaid interlocutory order
01.10.2022 in which it has been clearly
mentioned that PW-1 and PW-2 in their
statement and in their cross examination
they have not even whispered that the
deceased Jai Prakash committed suicide.
However, the I.O. of the case, mainly
relying upon the opinion of the doctor that
the cause of death is on account of
asphyxia as a result of ante mortem
hanging and have submitted charge sheet
under Section 306 IPC.

The prosecution at no stage has
ever protested on the said charge sheet and
the accused appellants were bailed from the
Hon'ble High Court under Section 306
IPC. Even at this stage, there was no
objection or protest by the prosecution that
it is not a case of Section 306 IPC but
Section 302 IPC. Not only this as
mentioned above on 07.07.2017 charges
under Section 306 IPC were framed and
explained to appellants. Virtually, during
the
entire
trial
the
prosecution
has
maintained its stoic silence and participated
to prove the charge against accused-
appellants only under Section 306 IPC.

In the order dated 01.10.2022 it
has been clearly mentioned that, the record
of the case is fixed for final arguments on
the merit of the case and at the fag end the
aforesaid application 86Kha has been
moved by the prosecution for altering the
charge and vide order dated 01.10.2022 the
application no. 86Kha stands allowed, with
the direction to frame an alternative charge
under Section 302 IPC. Consequently, on
12.10.2022, the Special Judge, SC/ST Act,
Court No.2 Bhadohi Gyanpur has framed
the charge under Section 302 IPC for the
incident said to have been taken place on
20.03.2016.

17. Interestingly on the same day i.e.
on 12.10.2022 yet another order was passed
framing an alternative charge of Section
302 IPC and accordingly, same was done.
9 All. Chhotai & Ors. Vs. State of U.P.
611
While passing the aforesaid order, it has
been mentioned by the learned trial judge
that since all the prosecution witnesses has
been examined, even statements under
Section 313 Cr.P.C. were recorded and the
case is fixed for final arguments, if the
accused appellants want to cross examine
the witnesses on the newly framed charge,
they may do so.

18. The relevant extract of order dated
12.10.2022 passed by Special Judge,
SC/ST Act/ Additional Sessions Judge,
Court No.2, Bhadohi, Gyanpur is quoted
herein below:-

"जैसा कि अकियोजन िी ओर समस्त साकियों िो
परीकित िराया जा चूिा है और अकियुक्तगण िा बयान अंतगगत
धारा ३१३ द० प० सं० अंकित हो चुिा है। पत्रावली बहस में चल
रही है। अकियुक्तगण यकद किसी सािी से नवीन वैिकपपि आरोप िे
सन्दिग में कजरह िरना चाहे तो उक्त हेतु स्वतंत्र है। पत्रावली वास्ते
बहस हेतु कदनांि १९.१०. २०२२ िो पेश हो। "

From the reading of the above
extract, it is urged by the learned
counsel that it seems certain amount of
concession & discount was given by
the learned trial judge to complete
certain formality of cross examination
from few of the witnesses. In this
regard, it is asserted that the provision
of Section 216 & 217 Cr.P.C. are not
simply formality but mandate of law,
which has to complied with in its letter
& spirit.

19. At this juncture, it is imperative to
spell out Section 216 & 217 Cr.P.C., which
are herein under for ready reference :-

" 216. Court may alter charge-

(1) Any Court may alter or add
to any charge at any time before judgment
is pronounced.

(2) Every such alteration or
addition shall be read and explained to the
accused.

(3) If the alteration or addition
to a charge is such that proceeding
immediately with the trial is not likely, in
the opinion of the Court, to prejudice the
accused in his defence or the prosecutor
in the conduct of the case, the Court may,
in its discretion, after such alteration or
addition has been made, proceed with the
trial as if the altered or added charge had
been the original charge.

(4) If the alteration or addition is
such that proceeding immediately with the
trial is likely, in the opinion of the Court,
to prejudice the accused or the prosecutor
as aforesaid, the Court may either direct a
new trial or adjourn the trial for such
period as may be necessary.

(5) If the offence stated in the
altered or added charge is one for the
prosecution of which previous sanction is
necessary, the case shall not be proceeded
with until such sanction is obtained,
unless sanction has been already obtained
for a prosecution on the same facts as
those on which the altered or added
charge is founded.

***** ***** ***** ***** *****
***** ***** *****

217. Recall of witnesses when
charge altered. Whenever a charge is
altered or added to by the Court after the
commencement of the trial, the prosecutor
and the accused shall be allowed-

(a) to recall or re- summon, and
examine with reference to such alteration
or addition, any witness who may have
612 INDIAN LAW REPORTS ALLAHABAD SERIES
been examined, unless the Court, for
reasons to be recorded in writing,
considers that the prosecutor or the
accused, as the case may be, desires to
recall or re- examine such witness for the
purpose of vexation or delay or for
defeating the ends of justice;

(b) also to call any further
witness whom the Court may think to be
material."

20. As mentioned above that at the
fag end of the trial the learned trial have
brushed aside the objection of the defense
and
have
framed
ALTERNATIVE
CHARGE under Section 302 IPC. At this
juncture all the prosecution witnesses were
already examined, statement under Section
313 Cr.P.C. were recorded and matter was
fixed for final submission. It is submitted
that eventually all the five accused persons
named above were convicted under Section
302 IPC i.e. alternative charge without
following above mentioned mandatory
mandate of law.

21 . The appellants filed this appeal
against the said conviction order, taking
the specific plea to the effect that they
could not have been any conviction under
Section 302 IPC. In this regard, it has
been pleaded that the alternative charge
under Section 302 IPC was wrongly
framed and appellants can not be
convicted without adhering the procedure
under Sections 216 & 217 Cr.P.C. and
therefore, the entire trial in so far as the
conviction under Section 302 IPC is
concerned stood vitiated.

22. Hon'ble Apex Court in its
judgement in the case of R.Rachaiah Vs.
Home Secretary, Banglore reported in
(2017)3SCC(Crl.)710=2016
12SCC172,
while dealing with the exact proposition of
law have opined :-

"The bare reading of Section
216 reveals that though it is permissible
for any Court to alter or add to any charge
at
any
time
before
judgment
is
pronounced, certain safeguards, looking
into the interest of the accused person who
is charged with the additional charge or
with the alteration of the additional
charge, are also provided specifically
under sub-sections (3) and 4 of Section
216 of the Code. Sub-section(3), in no
uncertain term, stipulates that with the
alteration or addition to a charge if any
prejudice is going to be caused to the
accused in his defence or the prosecutor
in the conduct of the case, the Court has
to proceed with the trial as if it altered or
added the original charge by terming the
additional
or
alternative
charge
as
original charge. The clear message is that
it is to be treated as charge made for the
first time and trial has to proceed from
that stage. This position becomes further
clear from the bare reading of subsection(4) of Section 216 of the Code
which empowers the Court, in such a
situation, to either direct a new trial or
adjourn the trial for such period as may
be necessary. A new trial is insisted if the
charge
is
altogether
different
and
distinct."

Even if the charge may be of
same species, the provision for adjourning
the trial is made to give sufficient
opportunity to the accused to prepare and
defend himself. It is, in the same process,
Section 217 of the Code provides that
whenever a charge is altered or added by
the Court after the commencement of the
trial, the prosecutor as well as the accused
shall be allowed to recall or re-summon or
9 All. Chhotai & Ors. Vs. State of U.P.
613
examine any witnesses who have already
been examined with reference to such
alteration
or
addition.
In
such
circumstances, the Court is to even allow
any further witness which the Court
thinks to be material in regard to the
altered or additional charge."

23. The accused persons were initially
charged for the offence under Section 306
IPC,
that
is
abetting
the
suicide.
Prosecution at no point of time, raised their
finger on the charge sheet. The post
mortem report of the deceased reveals that
that the cause of death asphyxia as a result
of hanging. It seems that this was the factor
prevail upon the police to file charge sheet
under Section 306 IPC. The appellants said
to have been aided and abetted the
deceased to take this extreme step. Not
only this, specific learned trial judge have
charged under Section 306 IPC for abetting
the suicide were farmed and all the
prosecution witnesses were examined and
cross examined by the appellants under
Section 306 IPC. Obviously when the
appellants were charged for an offence
under Section 306 IPC, i.e. abetting the
suicide, the focus as well as stress in cross
examine shall be on that charge alone. But
at the fag end of the trial, if the charges
were altered with alternative charge with
the framing of charge under Section 302
IPC,
this
gives
altogether
different
complexion
and
dimension
to
the
prosecution case. Entire texture of the trial
gets changed up side down.

24. In a case like present, addition
and/or substitution of such charge would
bound to create a prejudice to the
appellants. Such a charge has to be treated
as original charge. In order to take care of
the said prejudice, it was incumbent upon
the prosecution to recall the witnesses,
examined them in the context of the newly
framed charge under Section 302 IPC and
allow the accused persons to cross examine
those witnesses. Nothing of that sort has
ever happened.

25. If, we refer the impugned order
dated 12.10.2022 in which the learned trial
judge have mentioned "abhiyuktgan yadi
kisi sakshi se naveen vaikalpik aaroop ke
sandarbh me jirah karna chahe to ukt
hetu swatantra hai". From this it is
evident, that the learned trial judge has
tried to give a concession and a discount to
the accused appellants, if they want to cross
examine any prosecution witnesses of their
choice, they can do so. This is not the
mandate of the law. When the prosecution
is changing the tone, texture and tenure of
the case substantially upside down, these
concessions and discount won't do. Such
type
of
concession/discount
is
not
contemplated under Section 217 Cr.P.C..

In the present case the farming of
charge have been done on 12.10.2022,
testimonies of those witnesses were over
much prior to that date. Not only this,
accused person have got their statement
recorded under Section 313 Cr.P.C.. It
hardly needs to be demonstrated, that the
provision under Section 216 & 217 Cr.P.C.
are mandatory in nature, as they not only
subserve the requirement of the principles
of natural justice but guarantee and
important right which is given to the
accused persons to defend themselves
appropriately
by
giving
them
full
opportunity. Cross examination of the
witnesses in the process is an important
facet of this right. Credibility of any
witness can establish only after the said
witness put to the cross examination by the
accused person. No amount of concession
or discount by the learned trial judge would
614 INDIAN LAW REPORTS ALLAHABAD SERIES
replace this valuable right of the accused
appellants. The learned trial court is under
the legal obligation to open the 'chess
board' once again to achieve the object of
fair trial. In the instant case, there is no
cross examination so far as the alternative
charge under Section 302 IPC was ever
done and thus we are of the considered
opinion that there could not have been any
conviction under Section 302 IPC could be
passed by learned trial judge while passing
the impugned judgment and order of
conviction dated 19/22.11.2022 and thus
liable to be set aside.

26. Setting aside of a judgment too, is
not a remedy in the interest of justice. The
accused appellants are charge sheeted
accused of an offence and the justice
demands, that they must be put to re-trial
from the stage of framing of alternative
charges under Section 302 IPC. The earlier
conviction order is set aside on the
technical grounds but in all fairness the
accused appellants must face the trial on
the alternative charge. This is mandate of
law and has to be carried out in its letter
and spirit. In this regard, the remedy is
under Section 386 Cr.P.C. which empowers
to the appellate court to direct/de-novo
trial. Before coming to that Section 386
Cr.P.C., which reads thus:-

"386. Power of the Appellate
Court. After perusing such record and
hearing the appellant or his pleader, if he
appears, and the Public Prosecutor if he
appears, and in case of an appeal under
section 377 or section 378, the accused, if
he appears, the Appellate Court may, if it
considers that there is no sufficient ground
for interfering, dismiss the appeal, or may-

(a) in an appeal from an order or
acquittal, reverse such order and direct
that further inquiry be made, or that the
accused be re- tried or committed for trial,
as the case may be, or find him guilty and
pass sentence on him according to law;

(b)
in
an
appeal
from
a
conviction-

(i)
reverse
the
finding
and
sentence and acquit or discharge the
accused, or order him to be re- tried by a
Court
of
competent
jurisdiction
subordinate to such Appellate Court or
committed for trial, or

(ii) alter the finding, maintaining
the sentence, or

(iii) with or without altering the
finding, alter the nature or the extent, or
the nature and extent, of the sentence, but
not so as to enhance the Same;

(c) in an appeal for enhancement
of sentence-

(i)
reverse
the
finding
and
sentence and acquit or discharge the
accused or order him to be re- tried by a
Court competent to try the offence, or

(ii) alter the finding maintaining
the sentence, or

(iii) with or without altering the
finding, alter the nature or the extent, or
the nature and extent, of the sentence, so as
to enhance or reduce the same;

(d) in an appeal from any other
order, alter or reverse such order;

(e) make any amendment or any
consequential or incidental order that may
be just or proper; Provided that the
9 All. Chhotai & Ors. Vs. State of U.P.
615
sentence shall not be enhanced unless the
accused has had an opportunity of showing
cause against such enhancement: Provided
further that the Appellate Court shall not
inflict greater punishment for the offence
which in its opinion the accused has
committed, than might have been inflicted
for that offence by the Court passing the
order or sentence under appeal."

27. Since, we have already quashed
and set aside the impugned judgment and
order of conviction keeping in view the
serious
procedural
flaw
and
fallacy
necessitating re-trial of charge sheeted
accused appellants. Such fallacy as pointed
above,
have
resulted
into
serious
miscarriage of justice for appellants and
therefore, we are of the considered opinion
that the matter should be remanded back
for re-trial. The High Court being the first
appellate court is duty bound to examine
the evidence and arrive at an independent
finding based on appraisal of such evidence
and examine whether such lapses actually
affected the prosecution case or such lapses
have actually resulted into failure of justice.
The
circumstances
that
are
existing,
warrants the re-trial of the accusedappellants. The trial undertaken by the
court, having no jurisdiction or trial was
vitiated by serious illegality or irregularity
on account of misconception of nature of
proceedings or that irregularity has resulted
into miscarriage of justice to the accusedappellants.

28. In Section 386 Cr.P.C. deals with
the powers of appellate court. As per
Section 386(b) Cr.P.C. in an appeal from
conviction the appellate court may; (i)
reverse the finding and sentence and acquit
or discharge the accused or order him to retried by the court of competent jurisdiction
subordinate to such appellate court or
committed for trial or (ii) alter the finding,
maintaining the sentence or (iii) with or
without altering the finding, alter the nature
or the extent, or the nature and extent, of
the sentence but not so as to enhance the
same.

Learned
counsel
for
the
appellants has relied upon the judgement of
Hon'ble Apex Court in the case of Ajay
Kumar Ghoshal and others Vs. State of
Bihar and another reported in (2017)12
SCC 699.

29. The word "RE-TRIAL" is used
under Section 386(b)(i) Cr.P.C., the power
confers by this clause is to be exercise only
in the exceptional cases, where the
appellate court is satisfied that omission or
irregularity has occasioned 'failure of
justice'. The circumstances that should
exist for warranting for re-trial must be
such that the trial was undertaken by court
having no jurisdiction or the trial was
vitiated by serious illegality or irregularity
on account of misconception of the nature
of proceeding or such trial have resulted
into serious failure of justice to the
appellant. An order for re-trial may be
passed in cases where the original trial is
not satisfactory for some serious procedural
lapses resulted miscarriage of justice to
appellants such as wrong admission or
wrong rejection of the evidences or the
court has refused to hear certain witnesses
who were suppose to be heard or adding or
substituting the 'charge' in this regard to
graver section of the offences, without
adhering the mandatory procedure.

30. We have used the phrase a 'failure
of justice' what is meant by 'failure of
justice' occasion on account of such error,
omission or irregularity? Hon'ble Apex
Court Shamnsaheb M. Multtani Vs. State
616 INDIAN LAW REPORTS ALLAHABAD SERIES
of Kanataka reported in 2001(1)SCC
(Crl.) 358 opined that:-

"We often hear about 'failure of
justice' and quite often submission in the
criminal court is accentuated with the said
expression. Perhaps it is true pliable or
facile and expression which could be fitted
in any situation of the case. The criminal
court particularly a superior court should
make those examination to ascertain
whether there was a failure of justice or
whether it is only a camouflage."

Adding graver section of the
offence at the fag end of the trial but not
providing
reasonable
opportunity
as
contemplated under Section 216 & 217
Cr.P.C. would bound to lead 'failure of
justice to the accused appellants. Facts of
the present case, the appellants would be
faced with serious prejudice, if the entire
trial is not re-opened and they were given a
fair amount of opportunity to cross
examine the witnesses of prosecution. This
is not a camouflage but the need of the
time.

31. De-novo trial means "new trial"
ordered by appellate court in exceptional
cases when the original trial court failed to
make a determination in a manner dictated
by law. The trial court is required to
conduct a fresh by court, as if there had not
been a trial at first instance. Undoubtedly,
the appellate court has power to direct the
lower court to hold a "de-novo" trial. But
the question is when such power should be
exercise. As stated in the judgement of
Ukha Kolhe Vs. State of Maharashtra
reported in AIR 1963 (SC) 1531 held that
:-

"An order for retrial of a
criminal case is made in exceptional
cases, and not unless the appellate Court
is satisfied that the Court trying the
proceeding had no jurisdiction to try it or
that the trial was vitiated by serious
illegalities or irregularities or on account
of misconception of the nature of the
proceedings and on that account in
substance there had been no real trial or
that the Prosecutor or an accused was, for
reasons over which he had no control,
prevented from leading or tendering
evidence material to the charge, and in the
interests of justice the appellate Court
deems it appropriate, having regard to the
circumstances of the case, that the
accused should be put on his trial again.
An order of re-trial wipes out from the
record the earlier proceeding, and exposes
the person accused to another trial which
affords the prosecutor an opportunity to
rectify the infirmities disclosed in the
earlier trial, and will not ordinarily be
countenanced when it is made merely to
enable the prosecutor to lead evidence
which he could but has not cared to lead
either
on
account
of
insufficient
appreciation of the nature of the case or
for other reasons."

32. In yet another case State of M.P.
Vs. Bhooraji reported in 2001 SCC (Crl.)
1373 :-

"While dealing with question
whether the High Court should have
quash the proceeding only on account of
declaration of a legal position made by the
Supreme Court concerning the procedural
aspect about the cases involving offences
under SC/ST Act, Hon'ble Apex Court has
stated that a de-novo trial should be a last
resort and that too only when such court
become
desperately
indispensable.
It
should be a limited to extreme exigency to
avert failure of justice."
9 All. Chhotai & Ors. Vs. State of U.P.
617

33. In Zahira Habibullah H. Sheikh
Vs. State of Gujrat (Best Bakery Case)
reported in 2004 SCC (Crl.) 999, the
Supreme Court was convinced that the
witnesses
were
threatened
to
keep
themselves away from court and in such
circumstances of the case, not only the
court directed to have a de-novo trial but
made further directions for appointment of
a new prosecutor and retrial was directed to
be held out of the State of Gujrat. Though it
was an exceptional case under the extra
ordinary circumstances.

34. We are faced with yet another
very common phrases " the 'speedy trial'
and 'fair trial' to a person accused of a
crime and after referring a catena of
decisions an observations that are guiding
factor for re-trial must be a demand of
justice." In the case of Mohd. Hussain Vs.
State of NCT Delhi reported in 2012 (3)
SCC (Crl.) 1139, the Hon'ble opined in
paragraph 41 and 42 of the judgement
which is quoted herein below :-

" 41.-'Speedy trial' and 'fair
trial' to a person accused of a crime are
integral part of Article 21. There is,
however, qualitative difference between
the right to speedy trial and the accused's
right of fair trial. Unlike the accused's
right of fair trial, deprivation of the right
to speedy trial does not per se prejudice
the accused in defending himself. The
right to speedy trial is in its very nature
relative.
It
depends
upon
diverse
circumstances. Each case of delay in
conclusion of a criminal trial has to be
seen in the facts and circumstances of
such case. Mere lapse of several years
since the commencement of prosecution
by
itself
may
not
justify
the
discontinuance
of
prosecution
or
dismissal of indictment. The factors
concerning the accused's right to speedy
trial have to be weighed vis-à-vis the
impact of the crime on society and the
confidence of the people in judicial
system. Speedy trial secures rights to an
accused but it does not preclude the rights
of public justice. The nature and gravity
of crime, persons involved, social impact
and societal needs must be weighed along
with the right of an accused to speedy trial
and if the balance tilts in favour of the
former the long delay in conclusion of
criminal trial should not operate against
the continuation of prosecution and if the
right of accused in the facts and
circumstances of the case and exigencies
of situation tilts the balance in his favour,
the prosecution may be brought to an end.
These principles must apply as well when
the appeal court is confronted with the
question whether or not retrial of an
accused should be ordered.

42. The appellate court hearing
a criminal appeal from a judgment of
conviction has power to order the retrial
of the accused under Section 386 of the
Code. That is clear from the bare
language of Section 386(b). Though such
power exists, it should not be exercised in
a routine manner. A 'de novo trial' or
retrial is not the second trial; it is
continuation of the same trial and same
prosecution. The guiding factor for retrial
must always be demand of justice.
Obviously, the exercise of power of retrial
underSection 386(b) of the Code, will
depend on the facts and circumstances of
each case for which no strait jacket
formula can be formulated but the appeal
court must closely keep in view that while
protecting the right of an accused to fair
trial and due process, the people who seek
protection of law do not lose hope in legal
system and the interests of the society are
not altogether overlooked."
618 INDIAN LAW REPORTS ALLAHABAD SERIES

35. The language used under Section
386 (b) Cr.P.C.