# Tej Pal Singh & Ors v. State of U.P

- **Citation:** (2015) 3 ILRA 1466
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-12-02
- **Case number:** Criminal Appeal No. 2402 of 1981
- **Bench:** Arvind Kumar Tripathi, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tej-pal-singh-ors-v-state-of-u-p-43350
- **Pages:** 7

## Headnote

Cr.P.C.-Section-384,
385,
386-Criminal
Appeal-disposal-when original record of Trail
Court-not traceable-nor reconstruction, nor
retrial possible-in as much as all prosecution
witness died-except to allow the appeal and
set-a-side conviction-in view of Law laid
down by Apex Court-no other option Appeal
allowed.
Held: Para-16
In
view
of
the
aforesaid
discussion,
considering the judgment of the Apex Court
and of this Court, since inspite of best efforts
neither reconstruction of record is possible
nor re-trial is possible, hence, the criminal
appeal can not be deci ded on merit in
absence of relevant prosecution papers
including the statement of witnesses and as
such there is no option but to set aside the
impugned judgment of conviction. In view of
the fact, the judgment and order of
conviction and sentence dated 16.10.1981
passed by 5th Additional District and
Sessions Judge, Bijnor in Session Trial No.
350/79, under sections 147, 148, 302/149
IPC, P.S. Chandpur, District Bijnor, is hereby
set aside.
Case Law discussed:
Crl. Appeal No. 466 of 1980; AIR 1996
Supreme Court 2439 (1); AIR 2004 SC 3235;
1981 Crl.L.J 65; 1982 (19) ACC 128; 2010 (69)
ACC
749;
[1988
JIC
355]
3 All.
 Tej Pal Singh & Ors. Vs. State of U.P.
1467

## Text

1466
 INDIAN LAW REPORTS ALLAHABAD SERIES
Further, as averred above, on 18.6.2004,
the petitioner was reinstated in service
without prejudice to the departmental
inquiry to be conducted against him and
in the said order, it was provided that the
orders with regard to the pay and
allowances for the period he was under
suspension would be passed later on but
no such order was ever passed.
25.
In view of the aforesaid
discussions, the writ petition is allowed in
part. The impugned orders of removal dated
20.2.2006 passed by disciplinary authority,
affirmed by the Appellate Authority and
Revisional Authority cannot be sustained
are hereby set aside.
26. Taking into consideration the
fact that the petitioner has suffered a lot
since the disciplinary proceeding was
drawn in 2001 and in the interregnum, the
petitioner
attained
the
age
of
superannuation, I am not remitting the
proceeding to the disciplinary authority
for any further action. Further, keeping in
mind the fact that the petitioner had not
worked for a long time, I direct that
petitioner shall be treated as reinstated in
service from the date of dismissal to the
date of retirement for the purposes of
payment of post retiral dues like amount
of G.P.F., leave encashment, gratuity,
amount of Group Insurance and pension.
However, the petitioner will not be
entitled for any back-wages. The exercise
for payment of retiral dues and pension
shall be completed within a period of four
months from the date of production of
certified copy of this order by the
respondents/government authorities.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.12.2015
BEFORE
THE HON'BLE ARVIND KUMAR TRIPATHI, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.
Criminal Appeal No. 2402 of 1981
Tej Pal Singh & Ors.
 ...Appellants
Versus
State of U.P.
...Respondent
Counsel for the Appellants:
Krishna Capoor, D.N. Wali, Dr. Arun Srivastava,
I.N. Mulla, Pramod Dwivedi, Rahul Kakran, S.N.
Mulla, Sikandar Kochar, Virendra Singh
Counsel for the Respondent:
A.G.A.. P.N. Mishra
Cr.P.C.-Section-384,
385,
386-Criminal
Appeal-disposal-when original record of Trail
Court-not traceable-nor reconstruction, nor
retrial possible-in as much as all prosecution
witness died-except to allow the appeal and
set-a-side conviction-in view of Law laid
down by Apex Court-no other option Appeal
allowed.
Held: Para-16
In
view
of
the
aforesaid
discussion,
considering the judgment of the Apex Court
and of this Court, since inspite of best efforts
neither reconstruction of record is possible
nor re-trial is possible, hence, the criminal
appeal can not be deci ded on merit in
absence of relevant prosecution papers
including the statement of witnesses and as
such there is no option but to set aside the
impugned judgment of conviction. In view of
the fact, the judgment and order of
conviction and sentence dated 16.10.1981
passed by 5th Additional District and
Sessions Judge, Bijnor in Session Trial No.
350/79, under sections 147, 148, 302/149
IPC, P.S. Chandpur, District Bijnor, is hereby
set aside.
Case Law discussed:
Crl. Appeal No. 466 of 1980; AIR 1996
Supreme Court 2439 (1); AIR 2004 SC 3235;
1981 Crl.L.J 65; 1982 (19) ACC 128; 2010 (69)
ACC
749;
[1988
JIC
355]
3 All.
 Tej Pal Singh & Ors. Vs. State of U.P.
1467
(Delivered by Hon'ble Arvind Kumar
Tripathi, J.)
1. Heard learned counsel for the
appellants, learned AGA and perused the
record.
2. The present appeal has been
preferred by appellant no. 1 to 5 against
the judgment and order of conviction and
sentence dated 16.10.1981 passed by 5th
Additional District and Sessions Judge,
Bijnor in Session Trial No. 350/79, under
sections 147, 148, 302/149 IPC, P.S.
Chandpur, District Bijnor.
3. Appellant no. 5 died and as such the
appeal in respect of him stood abated. In
respect of appellant no. 1 to 4, namely, Tej
Pal Singh, Prem Pal Singh, Sheo Dhian
Singh, Om Pal Singh, in compliance of the
Non Bailable Warrant issued by this Court,
they surrendered before the C.J.M. Bijnor
and were released on bail on 26.10.2015.
4. As per office report dated
28.4.2003, lower court record was not
received. Thereafter on 29.4.2003, the
other coordinate Bench of this Court
directed to obtain the lower court record.
As per office report, the information was
received from District Court Bijnor to the
effect that the lower court record was
missing, hence, the direction was issued
for reconstruction of the lower court
record. Subsequently, the information was
given that the witness Smt. Naraini Devi
had expired and the direction was issued
on 3.1.2014 to obtain report in respect of
another witness Balbir. On 17.11.2015,
the information was given that the other
witness Balbir had died on 14.7.2014.
Hence, learned AGA was given time to
obtain instruction regarding death of
witness Balbir. Today, Mr. Chandrajeet
Yadav, learned AGA informed that as per
instruction received in his office, the
information regarding death of witness
Balbir is correct.
5.
In view of the fact, neither
reconstruction of the complete relevant
record specially statement of witness is
possible nor the retrial for deciding the
appeal. Hence, in view of the judgment of
the Apex Court as well as of this Court in
Criminal Appeal No. 466 of 1980, Sukhlal &
Others Vs. State of U.P., there is no option
but to allow this appeal.
6. Sections 384, 385 and 386
Cr.P.C. are reproduced hereinbelow.
"384. Summary dismissal of appeal.
(1) If upon examining the petition of
appeal and copy of the judgment received
under section 382 or section 383, the
Appellate Court considers that there is no
sufficient ground for interfering, it may
dismiss the appeal summarily: Provided
that-
(a) no appeal presented under section
382 shall be dismissed unless the
appellant or his pleader has had a
reasonable opportunity of being heard in
support of the same;
(b) no appeal presented under section
383 shall be dismissed except after giving
the appellant a reasonable opportunity of
being heard in support of the same, unless
the Appellate Court con- siders that the
appeal is frivolous or that the production
of the accused in custody before the Court
would involve such inconvenience as
would
be
disproportionate
in
the
circumstances of the case;
(c) no appeal presented under section
383 shall be dismissed summarily until
the period allowed for preferring such
appeal has expired.
1468
 INDIAN LAW REPORTS ALLAHABAD SERIES
(2) Before dismissing an appeal
under this section, the Court may call for
the record of the case.
(3) Where the Appellate Court
dismissing an appeal under this section is
a Court of Session or of the Chief Judicial
Magistrate, it shall record its reasons for
doing so.
(4) Where an appeal presented under
section 383 has been dismissed summarily
under this section and the Appellate Court
finds that another petition of appeal duly
presented under section 382 on behalf of the
same appellant has not been considered by it,
that Court may, notwithstanding anything
contained in section 393, if satisfied that it is
necessary in the interests of justice so to do,
hear and dispose of such appeal in
accordance with law.
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; 3
(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.
(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.
386. Powers 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 of
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
3 All.
 Tej Pal Singh & Ors. Vs. State of U.P.
1469
(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."
7. A cumulative reading of the
above referred three Sections ( 384, 385,
386) make it abundantly clear that the
appeal is to be decided on merit after
perusal of lower court record and hearing
the appellant or his counsel and the
prosecution if the appeal is not dismissed
summarily under Section 384 Cr.P.C.
8. In an authoritative pronouncement
reported in AIR 1996 Supreme Court
2439 (1) Bani Singh and others Vs. State
of U.P., Hon'ble Apex Court has
elaborated meaning of Section 385 and
386 of Criminal Procedure Code 1973 in
Para No. 8 of the judgment which is being
reproduced hereinbelow:
"Section 385 (2) clearly states that if
the Appellate Court does not dismiss the
appeal summarily, it `shall', after issuing
notice as required by sub-section (1), send
for the record of the case and hear the
parties. The proviso, however, posits that
if the appeal is restricted to the extent or
legality of the sentence, the Court need
not call for the record. On a plain reading
of the said provision, it seems clear to us
that once the Appellate Court, on an
examination of the grounds of appeal and
the impugned judgment, decides to admit
the appeal for hearing, it must send for the
record and then decide the appeal finally,
unless the appeal is restricted to the extent
and legality of the sentence. Obviously,
the requirement to send for the record is
provided for to enable the Appellate Court
to peruse the record before finally
deciding the appeal. It is not an idle
formality but casts an obligation on the
court to decide the appeal only after it has
perused the record. This is not to say that
it cannot be waived even where the
parties consent to its waiver. This
becomes clear from the opening words of
Section 386 which say that `after perusing
such record' the Court may dispose of the
appeal. However, this Section imposes a
further
requirement
of
hearing
the
appellant or his pleader, if he appears, and
the public prosecutor, if he appears. This
is an extension of the requirement of
Section 385(1) which requires the Court
to cause notice to issue as to the time and
place of hearing of the appeal. Once such
a notice is issued the accused or his
pleader, if he appears, must be heard."
9. In the case of State of U.P. Vs.
Abhai Raj Singh and another reported in
AIR 2004 SC 3235, in Para 8, it has been
held as under:
"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 v. Khimat Singh, (1889
1470
 INDIAN LAW REPORTS ALLAHABAD SERIES
A.W.N. 55), the view taken was that the
provisions of Section 423(1) of the
Criminal Procedure Code, 1898 (in short
'the Old Code') made it obligatory for the
Court to obtain and examine the record at
the time of hearing. When it was 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) 391). The
view has been reiterated by several High
Courts as well, even thereafter."
10. Again in the same case, Hon'ble
Apex Court has expressed about various
alternative steps to be taken in the matter
of loss of records in Para 10 of the
judgment
which
is
extracted
as
hereinbelow:
"We, therefore, set aside the order of
the High Court and remit the matter back
for fresh consideration. It is to be noted at
this juncture that one of the respondents
i.e. Om Pal has died during the pendency
of the appeal before this Court. The High
Court shall direct re-construction of the
records within a period of six months
from the date of receipt of our judgment
from all available or possible sources with
the assistance of the Prosecuting Agency
as well as the defending parties and their
respective counsel. If it is possible to have
the records reconstructed to enable the
High Court itself to hear and dispose of
the appeals in the manner envisaged under
Section 386 of the Code, rehear the
appeals and dispose of the same, on its
own merits and in accordance with law. If
it finds that re-construction is not
practicable but by order retrial interest of
justice could be better served - adopt that
course and direct retrial - and from that
stage law shall take its normal course. If
only reconstruction is not possible to
facilitate High Court to hear and dispose
of the appeals and the further course of
retrial and fresh adjudication by Sessions
Court is also rendered impossible due to
loss of vitally important basic records - in
that case and situation only, the direction
given in the impugned judgment shall
operate and the matter shall stand closed.
The appeals are accordingly disposed of."
11. In a similar case where lower
court record was not
available and
reconstruction of record did not succeed,
a division Bench of this Court has in the
case of Sita Ram and others Vs. State
1981 Crl.L.J 65, made observation in Para
11 which is quoted herebelow:
"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
3 All.
 Tej Pal Singh & Ors. Vs. State of U.P.
1471
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 above referred case of Sita
Ram (supra) the division Bench acquitted
the accused in view of the fact that the
lower
court
record
could
not
be
reconstructed. This aspect of Sita Ram
case (supra) was again considered by
another division Bench of this Court in
the case of Ram Nath Vs. State 1982 (19)
ACC 128 (decided on 3.11.1981) wherein
also following observations were made:-
"After making the aforementioned
observations and in view of the fact that
the court was not in a position to have the
record of the case re-constructed, the
Bench directed acquittal of the accused in
that case. The principle laid down in Sita
Ram's case fully applies to the facts of the
present case. As all attempts to have the
record re-constructed have failed, this
Court is not in a position to affirm the
conviction recorded by the trial court. So
far as the question of ordering a re-trial is
concerned, we find that in the instant case
the incident in connection with which the
accused were prosecuted, took place as
far back as 13th of September, 1970, that
is, more than eleven years earlier. In such
circumstances it will not be desirable to
direct a re-trial. In this view of the matter
we have no option but to allow Criminal
Appeal No.857 of 1976 and to set aside
the conviction and sentence of Ram Nath
and to acquit him of the offence with
which he has been charged."
13 . In similar circumstances another
division Bench of this Court in the case of
Brahmanand Shukla Vs. State of U.P.
2010 (69) ACC 749 made following
observation in Para 10:-
"In the present case, as we have
mentioned in the earlier part of the
judgment only a copy of the Trial Court's
judgment is available and no other
documents like FIR, post-mortem report,
copies of the documents which had been
filed by the prosecution and were
exhibited during trial, the statement of the
witnesses recorded under section 161,
Cr.P.C. are available despite various
attempts to reconstruct the record. The
incident is of the year 1979 i.e., the
incident took place about 30 years back.
In
these
circumstances,
no
fruitful
purpose would be served by ordering
retrial as the same cannot be conducted at
all in absence of these documents.
In the light of the above discussions
and circumstances mentioned above, we
have no other alternative but to allow the
appeal, set aside the conviction and
sentence of the appellant and to acquit
him."
1472
 INDIAN LAW REPORTS ALLAHABAD SERIES
14. In similar circumstances another
division Bench of this Court in the case of
Sita Ram and Others Vs. State made
following observation in Para 12 and 13:-
"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 18-11-1974. 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 non-availability 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.
13. In the circumstances the appeal is
allowed. The order of the court below
convicting and sentencing the appellants
is set aside and they are acquitted. They
are on bail. They need not surrender.
Their bail bonds are discharged. "
15.
In similar circumstances another
division Bench of this Court in the case of
Kesari and Others Vs. State of U.P. [1988 JIC
355] made following observation in Para 3 and
4:-
"3. Under these circumstances, the
lower court's record could not be obtained
and without the same, the appeal cannot
be heard on merits. It appears that the reconstruction of the record is also not
possible,
in-as-much
as
original
documents have all burnt out.
4.. Under these circumstances, both
the appeals stand allowed and the
conviction of the appellants and sentences
awarded to them are hereby set aside.
They are on bail. They need not
surrender. Their bail bonds and sureties
shall stand discharged. "
16. In view of the aforesaid discussion,
considering the judgment of the Apex Court
and of this Court, since inspite of best efforts
neither reconstruction of record is possible
nor re-trial is possible, hence, the criminal
appeal can not be deci ded on merit in
absence
of relevant prosecution papers
including the statement of witnesses and as
such there is no option but to set aside the
impugned judgment of conviction. In view of
the fact, the judgment and order of
conviction and sentence dated 16.10.1981
passed by 5th Additional District and
Sessions Judge, Bijnor in Session Trial No.
350/79, under sections 147, 148, 302/149
IPC, P.S. Chandpur, District Bijnor, is
hereby set aside.
16. Accordingly, the present appeal
is allowed. The appellants are on bail. The
sureties shall stand discharged.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.12.2015
BEFORE
THE HON'BLE DINESH MAHESHWARI, J.
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
Misc. Bench No. 2771 of 2003
M/S Kaka Advt. Agency
 ...Petitioner
Versus
The State of U.P.
...Respondent
Counsel for the Petitioner:
Apoorv Tiwari, Hemant Kumar Misra