# Mauji Lal & Ors. (In Jail) v. State

- **Citation:** (2022) 3 ILRA 991
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-15
- **Case number:** Criminal Appeal No. 474 of 1980
- **Bench:** Vivek Kumar Birla, Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mauji-lal-ors-in-jail-v-state-48351
- **Pages:** 20

## Headnote

D.G.A.

Record of Trial Court pertaining to the Criminal
Trial is unavailable or destroyed during the
pendency of the criminal appeal before the
Appellate Court.
992 INDIAN LAW REPORTS ALLAHABAD SERIES
Sections 385 and 386 of Cr.P.C- the situation
where the Trial Court record is unavailable or
destroyed
due
to
natural
calamities
or
otherwise, the Appellate Court is left with three
options (i) to direct for the reconstruction of
records, (ii) to direct for re-trial of the case and
(iii) to set aside the judgment of Trial Court

where the original records are destroyed on
account of natural or unnatural calamities, the
Appellate
Court
should
always
order
for
reconstruction of the records. all possible
endeavour should be made for reconstruction of
record and, in our opinion, following recourse
shall be adopted prior to coming to the
conclusion of disposal of such appeals:- the
duplicate copy of the original records.

ii. Notice shall be issued to concerned
police station/prosecuting agency to provide the
copy of police report filed after investigation U/s
173 (2) of Cr.PC.

iii.
Notice
shall
be
issued
to
concerned public prosecutor who has contested
the case on behalf of State/prosecuting agency
to provide the copy of record.

iv. Notice shall be issued to first
informant of the case to furnish the records
available with him.

v. Notice shall be issued to the
counsel for the first informant (if any) who has
contested the case on his behalf to furnish the
records available with him.

vi.
Notice
shall
be
issued
to
accused/accused persons of the case to furnish
the records available with him.

vii. Notice shall be issued to counsel
of the accused who has contested the case on
his behalf to furnish the records available with
him.

viii. Notice shall be issued to the son
or legal heir of the appellant in case appellant is
dead.

ix. All such notices shall be issued
through proper channel.

where Lower Court Record is not traceable;
reconstruction of same is not possible and even
retrial is not possible is to the effect that in such
case, the judgment of the Trial Court shall be
quashed and appellant shall be acquitted for all
charges. in the absence of original record, it is
not possible to arrive at a decision that
impugned judgment passed and sentence
awarded against appellant is legally justified and
in
conformity
with
law.
Where
the
reconstruction of record is not possible which
has been lost or destroyed, it is not legally
permissible for the Appellate Court to affirm the
conviction of the appellant since perusal of the
record of the case is one of the essential
elements of hearing of the appeal. Further,
appellant has a right to satisfy the Appellate
Court that the material or evidence available on
record did not justify his/her conviction and this
right cannot be denied to the appellant.

## Text

_Characters 0–39,926 of 66,628. This is a partial read: ask again with offset=39926 for what follows._

3 All. Mauji Lal & Ors. Vs. State
991
indicated in N.D.A.L. Portal as Sirsa,
Haryana is an error by opposite parties
themselves, the benefit of which can not be
extended to them to the detriment of
petitioner. It was the duty of opposite
parties to have updated their records once
petitioner's licence stood renewed by the
District
Magistrate
Unnao.
The
fact
whether
District
Magistrate,
Unnao
intimated the District Magistrate Sirsa
regarding renewal of petitioner's licence in
2015 and subsequently is also an inter
departmental
procedure
with
which
petitioner has no concern.

24. It has been informed that in
pursuance to impugned order, the authorities
at Unnao have seized petitioner's fire arm
and have furthermore intimated the District
Magistrate
Sirsa
for
cancellation
of
petitioner's licence and in pursuance thereof,
the District Magistrate Sirsa has also
initiated some proceeding for cancellation of
fire arm since it has not been renewed after
25th March, 2021. The opposite parties by
means of affidavit filed in support of
exemption from personal appearance have
also brought on record order dated 22nd
February, 2022 whereby petitioner's arms
licence has been renewed by the District
Magistrate Unnao from 26th March, 2021
till 25th March, 2026 but the same has been
made subject to decision of this petition and
orders to be passed by the District
Magistrate Sirsa.

25. In view of the discussion made
herein above, it is apparent that the renewal
of petitioner's arms licence after 2015 by the
District Magistrate Unnao was very well in
accordance with law and therefore there was
no occasion for the opposite parties to have
rejected petitioner's application for renewal
by means of impugned order dated 22nd
March, 2021.

26. In view of aforesaid, the impugned
order dated 22nd March, 2021 being clearly
unsustainable is quashed by issuance a writ
in the nature of Certiorari. It is also held that
the recommendation issued by the District
Magistrate, Unnao dated 7th January, 2022
to the District Magistrate Sirsa, Haryana was
clearly not in accordance with law as
indicated herein above. A further writ in the
nature of Mandamus is issued commanding
the opposite parties to return petitioner's
revolver S-2252NP bore bearing licence No.
8820/DM/SSA forthwith. It is also directed
that the petitioner's arms licence would stand
renewed up to 25th March, 2026 as per
order dated 22nd February, 2022 issued by
the Incharge Arms, Unnao in accordance
with this judgment. Resultantly the petition
succeeds and is allowed. Parties to bear their
own costs.
----------
(2022)03ILR A991
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.03.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SHREE PRAKASH SINGH, J.

Criminal Appeal No. 474 of 1980

Mauji Lal & Ors. ...Appellants (In Jail)
Versus
State ...Respondent

Counsel for the Appellants:
Sri R.K. Saxena, Sri Bal Mukund, Sri Mohd.
Naushad Siddiqui, Sri Satya Dheer Singh Jadaun

Counsel for the Respondent:
D.G.A.

Record of Trial Court pertaining to the Criminal
Trial is unavailable or destroyed during the
pendency of the criminal appeal before the
Appellate Court.
992 INDIAN LAW REPORTS ALLAHABAD SERIES
Sections 385 and 386 of Cr.P.C- the situation
where the Trial Court record is unavailable or
destroyed
due
to
natural
calamities
or
otherwise, the Appellate Court is left with three
options (i) to direct for the reconstruction of
records, (ii) to direct for re-trial of the case and
(iii) to set aside the judgment of Trial Court

where the original records are destroyed on
account of natural or unnatural calamities, the
Appellate
Court
should
always
order
for
reconstruction of the records. all possible
endeavour should be made for reconstruction of
record and, in our opinion, following recourse
shall be adopted prior to coming to the
conclusion of disposal of such appeals:- the
duplicate copy of the original records.

ii. Notice shall be issued to concerned
police station/prosecuting agency to provide the
copy of police report filed after investigation U/s
173 (2) of Cr.PC.

iii.
Notice
shall
be
issued
to
concerned public prosecutor who has contested
the case on behalf of State/prosecuting agency
to provide the copy of record.

iv. Notice shall be issued to first
informant of the case to furnish the records
available with him.

v. Notice shall be issued to the
counsel for the first informant (if any) who has
contested the case on his behalf to furnish the
records available with him.

vi.
Notice
shall
be
issued
to
accused/accused persons of the case to furnish
the records available with him.

vii. Notice shall be issued to counsel
of the accused who has contested the case on
his behalf to furnish the records available with
him.

viii. Notice shall be issued to the son
or legal heir of the appellant in case appellant is
dead.

ix. All such notices shall be issued
through proper channel.

where Lower Court Record is not traceable;
reconstruction of same is not possible and even
retrial is not possible is to the effect that in such
case, the judgment of the Trial Court shall be
quashed and appellant shall be acquitted for all
charges. in the absence of original record, it is
not possible to arrive at a decision that
impugned judgment passed and sentence
awarded against appellant is legally justified and
in
conformity
with
law.
Where
the
reconstruction of record is not possible which
has been lost or destroyed, it is not legally
permissible for the Appellate Court to affirm the
conviction of the appellant since perusal of the
record of the case is one of the essential
elements of hearing of the appeal. Further,
appellant has a right to satisfy the Appellate
Court that the material or evidence available on
record did not justify his/her conviction and this
right cannot be denied to the appellant.

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri S.D.S. Jadaun, learned
counsel for the appellants and Sri L.D.
Rajbhar, learned A.G.A. for the State.

2. This appeal has been preferred
against the Judgment and order dated
6.3.1980 passed by Second Additional
Sessions Judge, Non-Metropolitan Area,
Kanpur in Sessions Trial No. 189 of 1978,
convicting and sentencing the appellants
no.1 and 2 to undergo imprisonment for life
under Section 302/34 I.P.C. and to undergo
one years rigorous imprisonment under
Section
323/34
I.P.C.;
and
further
convicting and sentencing the appellant
no.3
to
undergo
one
year
rigorous
imprisonment under Section 323/34 I.P.C.

3. Perused the record. From the
perusal of the order sheet, it is evident that
on 9.2.2015, the lower court record was
summoned.
Later
on,
after
certain
correspondence, it was reported by the
office on 7.11.2019 that the Record Room,
3 All. Mauji Lal & Ors. Vs. State
993
Kanpur
Nagar,
vide
report
dated
31.10.2019, informed through the C.J.M.
concerned that the lower court record in
Sessions Trial No. 189 of 1978 is not
available and the departmental enquiry in
this regard has been initiated. Thereafter,
on 21.1.2020, the District Judge, Kanpur
Dehat, vide covering letter dated 21.1.2020,
has intimated that the enquiry in the said
matter was done and it was found that one
class-III employee Kailash Nath Yagik, the
then clerk of Second Additional District
and Sessions Judge, Kanpur Dehat, who
retired on 31st of March 2008 from service
and also died on 4th May 2010, was found
responsible for missing of the aforesaid
lower court record as the record reveals that
he had received said lower court record on
20.7.1992 during his posting as clerk with
the Second Additional District and Sessions
Judge, Kanpur Dehat. Later on, vide letters
dated 17.3.2020 and 21.3.2020, it has been
reported that the reconstruction of record
and retrial in the aforesaid matter are not
possible.

4. After taking into consideration of
the aforesaid facts, this Court has passed an
order on 20.9.2021 wherein the District
Magistrate, Kanpur Dehat and the Senior
Superintendent of Police/Superintendent of
Police, Kanpur Dehat were directed to
inform as to whether papers regarding
Sessions Trial No. 189 of 1978 under
Sections 302/34 and 323/34 I.P.C. are
available with their office so that hearing of
the case may proceed. Report dated
21.10.2021 was received from the office of
the District Magistrate, Kanpur Dehat
wherein it has been stated that no paper is
available with regard to the Sessions Trial
No. 189 of 1978 in his office including the
case diary of the case. After perusal of the
aforesaid report, this Court has proceeded
to decide the instant appeal.

5. In the aforesaid circumstances,
issue of construction of records pertaining
to criminal trial has arisen before the
Appellate Court on account of situation in
which the record of Trial Court pertaining
to the Criminal Trial is unavailable or
destroyed during the pendency of the
criminal appeal before the Appellate Court.

6. Before discussing the legal
remedies permissible in law in the situation
where Trial Court Records pertaining to
Criminal
Trial
are
destroyed,
it
is
significant to elaborate the legal provisions
enumerated in the Code of Criminal
Procedure, 1872 (hereinafter referred to as
the Cr.PC) for adjudication of Criminal
Appeal by Appellate Court.

7. Sections 385 and 386 Cr.P.C. deal
with the "procedure for hearing appeals not
dismissed summarily" and "powers of
Appellate Court", which are quoted as
under:-

Section
385.
Procedure
for
hearing appeals not dismissed summarily.

(1) If the Appellate Court does
not dismiss the appeal summarily, it shall
cause notice of the time and place at which
such appeal will be heard to be given-

(i) to the appellant or his pleader;

(ii) to such officer as the State
Government may appoint in this behalf;

(iii) if the appeal is from a
judgment of conviction in a case instituted
upon complaint, to the complainant;

(iv) if the appeal is under section
377 or section 378, to the accused, and
shall also furnish such officer, complainant
994 INDIAN LAW REPORTS ALLAHABAD SERIES
and accused with a copy of the grounds of
appeal.

(2) The Appellate Court shall
then send for the record of the case, if such
record is not already available in that
Court, and hear the parties: Provided that if
the appeal is only as to the extent or the
legality of the sentence, the Court may
dispose of the appeal without sending for
the record.

(3) Where the only ground for
appeal from a conviction is the alleged
severity of the sentence, the appellant shall
not, except with the leave of the Court,
urge or be heard in support of any other
ground.

Section
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

(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
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.

[Emphasis supplied]

8. Thus, from bare perusal of the
provisions of Sections 385 and 386 of Cr.P.C.,
it emerges that the powers of the Appellate
Court while dealing with an appeal arising out
3 All. Mauji Lal & Ors. Vs. State
995
of 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. For exercise of the
powers in cases of first two categories,
obviously
a
finding
on
merits
after
consideration of the materials on record is
imperative. Where that is not possible because
of circumstances like the case in 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 constructive efforts to
reconstruct the records the same was
impossible. If on the other hand, from the
copies available with the prosecuting agency
or the defence and/or their respective counsel,
reconstruction is possible to be made, said
course should be adopted and the appeal can
be disposed of as it deserved under course
indicated in clauses (i) and (ii). After perusal
of the records and hearing appellant's pleader
and public prosecutor under Section 377 or
378, the exercise of power as indicated above
can be resorted to. Hon'ble Apex Court was
pleased to observe in Bani Singh and others
Vs. State of U.P. (1996 (4) SCC 720) that
plain language of Section 385 makes it clear
that if the Appellate Court does not consider
the appeal fit for summary dismissal, it must
call for the records and Section 386 mandates
that after record is received, the Appellate
Court may dispose of the appeal after hearing
as indicated.

9. Prior to deal with the situation
where the records of Trial Courts are
unavailable or destroyed due to natural or
unnatural calamities, it would be fruitful to
discuss the nature of documents known or
called as records of Lower/Trial Court.

10. The proviso appended to Chapter
XII of the General Rules (Criminal), 1977,
deals with the Rules with respect to
"Destruction of Records". The relevant
Rules of Chapter XII of the General Rules
(Criminal), 1977 pertaining to Records are
as under -

i. Rule 117. Classes of Records

ii. Rule118. Destruction of paper

iii. Rule 119. Destruction of
paper

iv.
Rule
120.
Retention
of
Retention of register books, etc.

v. Rule 121. Retention of other
papers.

vi. Rule 122. Retention of other
papers.

vii. Rule 123. Destruction of
register, book

viii. Rule 124. Notice to be given
before destruction of original documents.

11. The Trial Court Records may be
segregated/classified in two parts. The first
part of the records are in form of the police
report filed after the investigation by the
police U/s 173 (2) of Cr.P.C. containing the
First Information Report, chick FIR,
statements of witnesses recorded during
investigation U/s 161 of Cr.P.C., inquest
report, post mortem report, medical/injury
reports, site plan, statement recorded U/s
996 INDIAN LAW REPORTS ALLAHABAD SERIES
164
Cr.P.C.
etc.
as
well
as
other
documentary
evidences
collected
by
investigating officer during investigation
depending upon the veracity of case. To be
more precise, the police report submitted
by police after conclusion of investigation
before the Court of competent jurisdiction,
which requires to be served upon accused
in compliance of section 207 of Cr.P.C.,
can be termed as first part of the Trial
Court Record.

12. The second part of the Trial Court
Record is the record containing the
testimonies
of
prosecution
witnesses
deposed before Trial Court, statement of
accused recorded U/s 313 of Cr.P.C.,
testimonies of defence witnesses, Court
witnesses examined before Trial Court.

13. Now, addressing to the situation
where the Trial Court record is unavailable
or destroyed due to natural calamities or
otherwise, the Appellate Court is left with
three
options
(i)
to direct
for
the
reconstruction of records, (ii) to direct for
re-trial of the case and (iii) to set aside the
judgment of Trial Court.

14. Dealing with the situation where
the original records are destroyed on
account of natural or unnatural calamities,
the Appellate Court should always order
for reconstruction of the records. It has
been the consistent view taken by several
High Courts that when records are
destroyed by fire or on account of natural
or unnatural calamities, reconstruction
should be ordered. In Queen Empress Vs.
Khimat Singh (1889 A.W.N. 55), the view
taken was that the provisions of Section
423 (1) of the Criminal Procedure Code,
1898, make it obligatory for the Court to
obtain and examine the record at the time
of hearing. In case when it is not possible
to do so, the only available course was a
direction for re- construction. The said
view was reiterated more than six decades
back in Re Sevugaperumal and Ors. (AIR
1943 (Madras). The view has been
reiterated by several High Courts as well,
even thereafter.

15. At many a times, the records of
the pending appeals before this Court are
missing at the district level and after
enquiry, it is found that either the record
keeper or such employee, who had been
entrusted to keep the records, has retired or
died. But, in such a situation, the ultimate
goal of dispensation of justice is hampered
and if it is not being taken seriously or if it
is not stopped, this practice would become
a module for delinquent persons who are
involved to get the record destroyed.

16. In the light of the facts and
circumstances discussed as above, all
possible endeavour should be made for
reconstruction of record and, in our
opinion,
following
recourse
shall
be
adopted prior to coming to the conclusion
of disposal of such appeals:- the duplicate
copy of the original records.

ii. Notice shall be issued to
concerned
police
station/prosecuting
agency to provide the copy of police report
filed after investigation U/s 173 (2) of
Cr.PC.

iii. Notice shall be issued to
concerned public prosecutor who has
contested
the
case
on
behalf
of
State/prosecuting agency to provide the
copy of record.

iv. Notice shall be issued to first
informant of the case to furnish the records
available with him.
3 All. Mauji Lal & Ors. Vs. State
997

v. Notice shall be issued to the
counsel for the first informant (if any) who
has contested the case on his behalf to
furnish the records available with him.

vi. Notice shall be issued to
accused/accused persons of the case to
furnish the records available with him.

vii. Notice shall be issued to
counsel of the accused who has contested
the case on his behalf to furnish the records
available with him.

viii. Notice shall be issued to the
son or legal heir of the appellant in case
appellant is dead.

ix. All such notices shall be
issued through proper channel.

17. After adopting the aforementioned
recourses if records are made available and
produced before the Appellate Court, the
appeal shall be heard and decided by
Appellate Court in terms of sections 385
and 386 of Cr.P.C.

18. Now, dealing with the situation
where records pertaining to the case
diary/police report filed by prosecuting
agency U/s 173 (2) of Cr.P.C. and which
are served upon the accused by Court in
compliance of section 207 of Cr.P.C. are
only made available, it would be expedient
in the interest of justice for the Appellate
Court to order for re-trial of the case for the
reason
that
those
basic
documents
pertaining to evidence collected by the
prosecuting agency along with the list of
witnesses upon which prosecution is
relying to prove its case against accused are
available. In such a case, re-trial from the
stage of serving police report to accused in
compliance
of
Section
207
Cr.P.C.
followed by procedure of sections 226, 227
and 228 of Cr.P.C. shall be ordered by
Appellate Court to secure ends of justice.

19. It is relevant to mention here that
the police report filed by prosecuting
agency in compliance of section 173 (2) of
Cr.P.C. contains First Information Report,
chick F.I.R., statements of witnesses
recorded during investigation U/s 161 of
Cr.P.C., inquest report, post mortem report,
medical/injury reports, site plan, statement
recorded U/s 164 Cr.P.C. etc. and are for
the
limited
purposes
of
omissions,
corroborations,
improvement
and
contradictions only when confronted to the
witnesses in the Trial Court by defence
and, therefore, their duplicate copies will
have the same relevancy and admissibility
as of being original one. It is the ocular
testimonies of witnesses recorded on oath
before Trial Court as well as the
documents/records of the police report or
otherwise proved by the related witness
leads to the conviction or acquittal of the
accused. After the order of re-trial, ocular
testimonies of witnesses recorded on oath
before Trial Court will lead to the fate of
Trial.

20. Now, the point of consideration is
that if it is not possible to reconstruct any
record pertaining to trial then what legal
recourse shall be adopted by Appellate
Court ? Hon'ble Supreme Court of India as
well as this High Court has propounded the
legal proposition in the aforesaid regard in
catena of judgments, which are discussed
as follows:-

21. In Shyam Deo Pandey Vs. State
of Bihar, 1971 (1) SCC 855, the Apex
Court held that fulfillment of requirement
for availability of record is necessary to
enable the court to adjudicate upon the
998 INDIAN LAW REPORTS ALLAHABAD SERIES
correctness or otherwise of the order or
judgment appealed against nor only with
reference to the judgment but also with
reference to the records which will be the
basis on which the judgment is founded.
Relevant part of the judgment is extracted
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 judgment
appealed against not only with reference to
the judgment but also with reference to the
records which will be the basis on which
the judgment 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
by the Appellate Court."

22. In Sita Ram and Others Vs.
State 1981 Cri.L.J. 65, the Court held that
in absence of the original record, it is not
possible to arrive at a decision that
impugned judgment is supported by the
evidence on record and order of conviction
passed and the sentence imposed on the
appellants is legally justified and proper.
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
appellant 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. The relevant part of the
judgment reads as under :

"4. Section 385, Cr. P.C. provides
that if the appellate court does not dismiss
the appeal summarily, it shall cause notice
of the time and place at which such appeal
will be heard to be given (i) to the
appellant or his pleader; (ii) to such officer
as the State Government may appoint in
this behalf; (iii) if the appeal is from a
judgment of conviction in a case instituted
upon complaint, to the complainant; (iv) if
the appeal is under Section 377 or Section
378, to the accused, and shall also furnish
such officer, complainant and accused with
a copy of the grounds of appeal. Subsection (2) provides that the appellate court
shall then send for the record of the case, if
such record is not already available in that
Court, and hear the parties: provided that
if the appeal is only as to the extent or the
legality of the sentence, the Court may
dispose of the appeal without sending for
the record. Section 386 prescribes the
powers of the appellate court. That power
has to be exercised after perusing the
record and hearing the appellant or his
pleader, if he appears, and the Public
Prosecutor, if he appears. In QueenEmpress v. Khimat Singh 1889 All WN 55
this Court observed "the appellant is
entitled in law to have a hearing in this
Court of his appeal, but the loss of the
record has deprived him of the only means
of making good the pleas of the appeal...."
A Division Bench of the Calcutta High
Court in Abbash Ali v. Emperor (1913) 19
Ind Cas 182 : 14 Cri LJ 182 observed that
the appellate court must peruse the record
3 All. Mauji Lal & Ors. Vs. State
999
before deciding the appeal. A decision
upon a perusal only of the judgment
appealed against is not legal.

5. Since it is incumbent on the
appellate court to send for the record and
peruse it and hear the counsel for the
parties before it can exercise its power
under Section 386, the present appeal
cannot possibly be heard and decided on
merit.

6. The appellants have a right to
show to this Court that the decision arrived
at by the court below was not supported by
the
evidence
on
record.
They
can
legitimately contend that material evidence
and
circumstances
have
either
been
ignored or incorrectly appraised. This right
cannot be denied to the appellants. In the
absence of the original record it is not
possible for us to arrive at a decision that
the impugned judgment is supported by the
evidence on record and the order of
conviction
passed
and
the
sentence
imposed on the appellants is legally
justified and proper.

7. In such a situation two courses
are open to the Court; (1) to order retrial
after setting aside the impugned judgment;
or (2) to acquit the appellants. A situation
like the present one arose before Courts
earlier also. In re Sevugaperumal AIR 1943
Mad 391 (2) : 44 Cri LJ 611 the accused
were convicted under Sections 457, 395
and 397 Penal Code, and sentenced to
various terms of imprisonment. Following
the decision of this Court in QueenEmpress v. Khimat Singh 1889 All WN 55
(supra) the Madras High Court ordered
retrial after setting aside the convictions.
From the reports of these decisions it is not
clear how much time had elapsed between
the incident and the date when retrial was
directed. In the Madras case the impugned
order of the trial court was dated 22-61942. The appeal was filed on 6-8-1942
and the original record was destroyed by
fire on 17-8-1942. The appeal came up for
hearing on 5-11-1942. It may be that the
time lapse between the date of the incident
and the date of decision by the appellate
court was not long. Moreover the Public
Prosecutor conceded in those cases that no
other course was possible under the
circumstances.

8. In Madhusudhan v. State 1963
(2) Cri LJ 103 (Orissa) the appellant was
convicted under Section 302, I.P.C. and
sentenced to imprisonment for life by an
order of the Sessions Judge dated 17-41962. The incident had taken place on 293-1962. The appeal came up for hearing on
12-12-1962. The appellate court directed
retrial of the case. It may be noted that the
order for retrial was passed well within two
years of the incident.

9. A similar situation arose
before this Court in Zillar v. State 1956 All
WR (HC) 613. In this case the appellants
were convicted by the Sessions Judge on
21-1-1951 under Sections 304 and 148,
I.P.C. in respect of the offence committed
on 2-4-1950. The appeal was filed in this
Court on 24-1-1951 which came up for
hearing in April 1956 when it was brought
to the notice of the Court that the entire
record of the case had been lost. Attempt
was made to reconstruct the record but it
proved futile. This Court refused to direct
retrial of the case on the reasoning that the
case related to an offence which was
committed more than six years ago and five
years had elapsed since the judgment of the
Sessions Judge convicting the appellants
was passed. The court took into account the
further fact that even the copies of the
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
F.I.R. and the statements of witnesses taken
under Section 161 Cr. P.C. were not
available as they had been weeded out in
the ordinary course.

10. A Division Bench of this
Court in Criminal Appeal No. 3235 of 1971
(Jit Narain v. State) decided on 15-3-1978
in similar circumstances allowed the
appeal and acquitted the appellants instead
of directing their retrial.

11. On a careful consideration of
the relevant statutory provisions and the
principle 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 appellant
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 lag between the date of the
incident and the date on which the appeal
comes up for hearing is short, the proper
course would be to direct retrial of the case
since
witnesses
normally
would
be
available and it would not cause undue
strain on the memory of witnesses. Copies
of F.I.R., statements of witnesses under
Section 161, Cr. P.C. reports of medical
examination etc. would also be normally
available if the time gap between the
incident and the order of retrial is not
unduely 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 F.I.R. and statements of
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 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 hardship to the accused and
waste of time, money and energy of the
State.

12. In the present case the
incident took place on 23-8-1971. The
appellants
were
convicted
by
the
Sessions Court by an order dated 18-111974. The appeal has been pending in
this Court for about six years. We are
informed that
copies of
the First
Information Report and statements of
witnesses recorded under Section 161,
Cr. P.C. have been weeded out and are
not available. All attempts to reconstruct
the record have proved futile. In such a
situation it is not permissible for us to
affirm the order of conviction of the
appellants, since in the absence of the
record we cannot possibly feel satisfied
that the appellants have been rightly
convicted. Due to lapse of time and nonavailability
of
papers
like
First
Information Report, statements under
Section 161, Criminal Procedure Code
etc, we do not consider it either just or
expedient to order retrial of the case."

23. In Bhunda and Others Vs. State
of U.P., 2002 Cri.L.J. 3898, the Court
observed and held as under :
3 All. Mauji Lal & Ors. Vs. State
1001

"7. After admission of the appeal,
record
of
the
Lower
Court
was
requisitioned from the Sessions Judge
concerned. The report of the Sessions
Judge, Jhansi dated 19-2-2001 shows that
the record of the Lower Court was weeded
out on 31-10-1992. The Sessions Judge had
ordered reconstruction of the record.
According to report of First Additional
Sessions Judge, Jhansi reconstruction of the
record was not possible as no documents
relating to the case were available.

8. The question which crops is as
to whether the appeal can be decided for
want of record of the Lower Court.

9. Similar situation arose before
this Court in the case of Sita Ram v. State
of U.P., 1981 Cri LJ 65. The Division
Bench hearing the appeal held as below
(Paras 4 and 5) :-

Section 385, Cr. P.C. provides
that if the appellate Court does not dismiss
the appeal summarily, it shall cause notice
of the time and place at which such appeal
will be heard to be given (i) to the appellant
or his pleader, (ii) to such officer as the
State Government may appoint in this
behalf; (iii) if the appeal is from a
judgment, of conviction in a case Instituted
upon complaint, to the complainant; (iv) if
the appeal is under Section 377 or Section
378, to the accused, and shall also furnish
such officer, complainant and accused with
a copy of the grounds of appeal. Subsection (2) provides that the appellate Court
shall then send for the record of the case, if
such record is not already available in that
Court, and hear the parties, provided that if
the appeal is only as to the extent or the
legality of the sentence, the Court may
dispose of the appeal without sending for
the record. Section 386 prescribed the
powers of the appellate Court. That power
has to be exercised after perusing the
record and hearing the appellant or his
pleader, if he appears, and the Public
Prosecutor, if he appears. In QueenEmpress v. Khirnat Singh, 1989 All WN 55
this Court observed 'the appellant is entitled
in law to have a hearing in this Court of his
appeal, but the loss of the record has
deprived him of the only means of making
good the pleas of the appeal...' A Division
Bench of the Calcutta High Court in
Abbash Ali v. Emperor, (1913) 19 Ind Cas
182 : 14 Cri LJ 182 observed that the
appellate Court must peruse the record
before deciding the appeal. A decision
upon a perusal only of the Judgment
appealed against is not legal.

Since it is incumbent on the
appellate Court to send for the record and
peruse it and hear the counsel for the
parties before it can exercise its power
under Section 386, the present appeal
cannot possibly be heard and decided on
merit.

It was further held as below (Para
11):-

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 appellant 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 lag between the
date of the incident and the date on which
the appeal comes up for hearing is short,
the proper course would be to direct retrial
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
of the case since witnesses normally would
be available and it would not cause undue
strain on the memory of witnesses. Copies
of F.I.R. statements of witnesses under
Section 161, Cr. P, C. reports of medical
examination 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 F.I.R. and statements of
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 witness are available, apart
from the fact that heavy strain would be put
on the memory of witnesses, it would not
be possible to test their statement 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
hardship to the accused and waste of time,
money and energy of the State.

10. The above case of Division
Bench was further relied on by subsequent
Division Bench in the case of Ram Nath v.
State, 1982 All Cri C 128.

11. In the instant case the report of
the Sessions Judge, Jhansi shows that
reconstruction of record was not possible
despite of all attempts taken in this regard. this
Court, therefore, is not in a position to confirm
the conviction recorded by the trial Court.

12. So far as the question of
ordering retrial is concerned the occurrence
in this case took place as late as on 20-51975 i.e. as far back as 26 years. In such
situation it will not be justifiable to direct
retrial.

In this view of the matter, I have
no option but to allow the appeal and set
aside the conviction and sentence of the
appellants."

24. In State of U.P. v. Abhai Raj
Singh (2004) 4 SCC 6, the Court observed
and held as under :

"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 and acquit.
Therefore, the acquittal is possible when
there is reversal of the finding and
sentence. The appellate court of competent
jurisdiction subordinate to the appellate
court or committed for trial . For exercise
of the powers in cases of first two
categories, obviously a finding on 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 the same was
impossible. If on the other hand, from the
copies available with the prosecuting
agency
or
the defence
and/or
their
respective
counsel,
reconstruction
is
possible to be made, the said course
indicated in sub-clause (i) and (ii).