# NASIB SINGH v. THE STATE OF PUNJAB & ANR

- **Citation:** [2021] 13 S.C.R. 566
- **Court:** Supreme Court of India
- **Decided:** 2021-10-08
- **Case number:** Criminal Appeal Nos. 1051-1054 of 2021
- **Bench:** Dr. Dhananjaya Y Chandrachud, Vikram Nath, B.V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nasib-singh-v-the-state-of-punjab-anr-35283
- **Pages:** 45

## Headnote

Code of Criminal Procedure, 1973: ss. 386, 223 - Power of
appellate court to direct retrial - Scope of - Held: Appellate Court
may direct a retrial only in 'exceptional' circumstances to avert a
miscarriage of justice - Mere lapses in the investigation are not
sufficient to warrant a direction for re-trial - Only if the lapses are
so grave so as to prejudice the rights of the parties, a retrial can be
directed - On facts, two FIR's relating to the offences in the same
transaction, one arising out of the alleged gang rape of the
prosecutrix; and other arising out of the suicide of the prosecutrix
- Order by the High Court remitting the judgments of conviction
and acquittal of the Additional Sessions Judge in the trials arising
out of the two FIRs and directing that trials be clubbed and tried
together as provided u/s. 223, is a travesty of justice - With a lapse
of over 7 years since the date of the incident, a retrial would not
advance the cause of justice but would result in a serious miscarriage
of justice - Even if it is conceded that the alleged offences committed
in the two FIRs were committed in the course of the same transaction,
within the meaning of the phrase in s. 223(d), it does not warrant
the exercise of discretion to direct a retrial followed by a joint trial
- It was imperative for the accused to prove that the separate trials
caused a miscarriage of justice - No explanation rendered on the
aspect of a miscarriage of justice - Furthermore, the holding of
separate trials was not contrary to law and that there was no resultant
failure of justice demonstrated to the satisfaction of the High Court
- Thus, the order by the High Court set aside.
Allowing the appeals, the Court
HELD: 1.1 Section 386 CrPC defines the powers of the
appellate court. Under clause (a), the appellate court is
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empowered inter alia in an appeal from an order of acquittal: to
reverse such order and direct that a further inquiry be made; or
that the accused be re-tried or committed for retrial; or find him
guilty and pass sentence on him according to law. The power of
the appellate court to order a retrial is also recognized in clause
(b)(i) in the context of an appeal from a conviction and in clause
(c)(i) in an appeal for enhancement of sentence. [Para 20][584-G;
586-A-C]
1.2 A retrial would not be ordered unless the appellate court
is satisfied that the court trying the proceeding had no jurisdiction;
the trial was vitiated by serious illegalities and irregularities or
on account of a misconception of the nature of the proceedings
as a result of which no real trial was conducted; or the prosecutor
or an accused was for reasons beyond their control prevented
from leading or tendering evidence material to the charge and
that in the interest of justice, the appellate court considers it
appropriate to order a retrial. An order of retrial wipes out from
the record the earlier proceeding and exposes the present
accused to another trial. It is for that reason that a retrial cannot
be ordered merely on the ground that the prosecution did not
produce proper evidence and did not know how prove their case.
[Para 22][587-E-H]
1.3 The principles emerging on retrial can be formulated
as under:
(i) The appellate court may direct a retrial only in
'exceptional' circumstances to avert a miscarriage of justice;
(ii) Mere lapses in the investigation are not sufficient to
warrant a direction for re- trial. Only if the lapses are so grave so
as to prejudice the rights of the parties, can a retrial be directed;
(iii) A determination of whether a 'shoddy' investigation/
trial has prejudiced the party, must be based on the facts of each
case pursuant to a thorough reading of the evidence;
(iv) It is not sufficient if the accused/ prosecution makes a
facial argument that there has been a miscarriage of justice
warranting a retrial. It is incumbent on the appellate court
directing a retrial to provide a reasoned order on the nature of
NASIB SINGH

## Text

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SUPREME COURT REPORTS
[2021] 13 S.C.R.
[2021] 13 S.C.R. 566
566
NASIB SINGH
v.
THE STATE OF PUNJAB & ANR.
(Criminal Appeal Nos. 1051-1054 of 2021)
OCTOBER 08, 2021
[DR. DHANANJAYA Y CHANDRACHUD, VIKRAM NATH
AND B.V. NAGARATHNA, JJ.]
Code of Criminal Procedure, 1973: ss. 386, 223 - Power of
appellate court to direct retrial - Scope of - Held: Appellate Court
may direct a retrial only in 'exceptional' circumstances to avert a
miscarriage of justice - Mere lapses in the investigation are not
sufficient to warrant a direction for re-trial - Only if the lapses are
so grave so as to prejudice the rights of the parties, a retrial can be
directed - On facts, two FIR's relating to the offences in the same
transaction, one arising out of the alleged gang rape of the
prosecutrix; and other arising out of the suicide of the prosecutrix
- Order by the High Court remitting the judgments of conviction
and acquittal of the Additional Sessions Judge in the trials arising
out of the two FIRs and directing that trials be clubbed and tried
together as provided u/s. 223, is a travesty of justice - With a lapse
of over 7 years since the date of the incident, a retrial would not
advance the cause of justice but would result in a serious miscarriage
of justice - Even if it is conceded that the alleged offences committed
in the two FIRs were committed in the course of the same transaction,
within the meaning of the phrase in s. 223(d), it does not warrant
the exercise of discretion to direct a retrial followed by a joint trial
- It was imperative for the accused to prove that the separate trials
caused a miscarriage of justice - No explanation rendered on the
aspect of a miscarriage of justice - Furthermore, the holding of
separate trials was not contrary to law and that there was no resultant
failure of justice demonstrated to the satisfaction of the High Court
- Thus, the order by the High Court set aside.
Allowing the appeals, the Court
HELD: 1.1 Section 386 CrPC defines the powers of the
appellate court. Under clause (a), the appellate court is
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empowered inter alia in an appeal from an order of acquittal: to
reverse such order and direct that a further inquiry be made; or
that the accused be re-tried or committed for retrial; or find him
guilty and pass sentence on him according to law. The power of
the appellate court to order a retrial is also recognized in clause
(b)(i) in the context of an appeal from a conviction and in clause
(c)(i) in an appeal for enhancement of sentence. [Para 20][584-G;
586-A-C]
1.2 A retrial would not be ordered unless the appellate court
is satisfied that the court trying the proceeding had no jurisdiction;
the trial was vitiated by serious illegalities and irregularities or
on account of a misconception of the nature of the proceedings
as a result of which no real trial was conducted; or the prosecutor
or an accused was for reasons beyond their control prevented
from leading or tendering evidence material to the charge and
that in the interest of justice, the appellate court considers it
appropriate to order a retrial. An order of retrial wipes out from
the record the earlier proceeding and exposes the present
accused to another trial. It is for that reason that a retrial cannot
be ordered merely on the ground that the prosecution did not
produce proper evidence and did not know how prove their case.
[Para 22][587-E-H]
1.3 The principles emerging on retrial can be formulated
as under:
(i) The appellate court may direct a retrial only in
'exceptional' circumstances to avert a miscarriage of justice;
(ii) Mere lapses in the investigation are not sufficient to
warrant a direction for re- trial. Only if the lapses are so grave so
as to prejudice the rights of the parties, can a retrial be directed;
(iii) A determination of whether a 'shoddy' investigation/
trial has prejudiced the party, must be based on the facts of each
case pursuant to a thorough reading of the evidence;
(iv) It is not sufficient if the accused/ prosecution makes a
facial argument that there has been a miscarriage of justice
warranting a retrial. It is incumbent on the appellate court
directing a retrial to provide a reasoned order on the nature of
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
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the miscarriage of justice caused with reference to the evidence
and investigatory process;
(v) If a matter is directed for re-trial, the evidence and record
of the previous trial is completely wiped out; and
(vi) The Court could order a retrial on the ground of
miscarriage of justice when the trial court has proceeded with
the trial in the absence of jurisdiction; the trial has been vitiated
by an illegality or irregularity based on a misconception of the
nature of the proceedings; and the prosecutor has been disabled
or prevented from adducing evidence as regards the nature of
the charge, resulting in the trial being rendered a farce, sham or
charade. [Para 28][594-A-H]
1.4 The principles formulated on joint trial and separate
trials are that section 218 provides that separate trials shall be
conducted for distinct offences alleged to be committed by a
person. Sections 219 - 221 provide exceptions to this general
rule. If a person falls under these exceptions, then a joint trial for
the offences which a person is charged with may be conducted.
Similarly, under Section 223, a joint trial may be held for persons
charged with different offences if any of the clauses in the
provision are separately or on a combination satisfied. While
applying the principles enunciated in Sections 218 - 223 on
conducting joint and separate trials, the trial court should apply a
two-pronged test, namely, whether conducting a joint/separate
trial will prejudice the defence of the accused; and/or whether
conducting a joint/separate trial would cause judicial delay. The
possibility of conducting a joint trial will have to be determined
at the beginning of the trial and not after the trial based on the
result of the trial. The appellate court may determine the validity
of the argument that there ought to have been a separate/joint
trial only based on whether the trial had prejudiced the right of
accused or the prosecutrix. Since the provisions which engraft
an exception use the phrase 'may' with reference to conducting
a joint trial, a separate trial is usually not contrary to law even if a
joint trial could be conducted, unless proven to cause a
miscarriage of justice. A conviction or acquittal of the accused
cannot be set aside on the mere ground that there was a possibility
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of a joint or a separate trial. To set aside the order of conviction
or acquittal, it must be proved that the rights of the parties were
prejudiced because of the joint or separate trial, as the case may
be. [Para 38][603-D-H; 604-A-B]
1.5 As regards, the judgment of the Additional Sessions
Judge in FIR 187 of 2012, the allegation against the appellant
was that that he had made a tainted investigation in the rape case
(FIR 96) so as to help the accused and had abetted the commission
of suicide by the deceased. The trial judge while acquitting the
appellant found that: the appellant's name is not mentioned in
the suicide note; the original suicide note which was taken into
possession by PW 22 (investigating Officer) had not been
tampered with by the appellant and PW 22 had admitted during
his cross-examination that the preliminary investigation
conducted by the appellant had been adopted by him during
further investigation; and PW12, PW2 and PW21 had not made
any allegation during the course of their evidence against the
appellant but on the contrary had stated that he had conducted a
proper investigation. On appreciating the evidence, the trial judge
came to the conclusion that there was an absence of evidence on
record to demonstrate that the appellant committed any offence
under Sections 306, 217, and 218 IPC. [Para 39][604-D-H;
605-A-B]
1.6 The High Court proceeded to order a retrial holding
that a separate trial in FIR 96 and FIR 187 has caused prejudice
to both the parties in as much as they were unable to rely on the
evidence in the other case. The High Court held that the Court
has the discretion to conduct a joint trial for both the alleged
offences, namely, the gang rape of the prosecutrix and the
resultant suicide and its abetment since they are connected in
view of Section 223(d) CrPC; the prosecution and the defence
are relying on the facts and evidence of both the cases-FIR 96
and 187. But since the trials were separately held, in view of
Nathi Lal's case, the Court was unable to refer to the evidence in
the other case. If the evidence in the trials arising out of both
FIRs is not scanned together by the court to arrive at the final
conclusion, it will lead to a failure of justice; and though the
appellant was acquitted in both FIR 96 and FIR 187, taking into
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the consideration the entire situation and 'the angle of failure
of justice, the case must be remanded for retrial. [Para 40]
[605-B-F]
1.7 The power to order a retrial has been consistently held
to be of an exceptional nature beginning with the formulation of
the principles by the Constitution Bench in Ukha Kolhe's case
and the resultant formulation, more recently, by the two judge
Bench in Ajay Kumar Ghoshal's case. Directing a joint trial is not
mandatory but lies within the discretion of the Court under Section
223 of the CrPC. Clause (d) of Section 223 permits persons
accused of different offences committed in the course of the same
transaction to be charged and tried together. [Para 42][606-E-F]
Ukha Kolhe v. State of Maharashtra (1964) 1 SCR 926
- followed.
Ajay Kumar Ghoshal v. State of Bihar (2017) 12 SCC
699 : [2017] 1 SCR 469 - relied on.
1.8 The High Court was conscious of the fact that the
appellant was tried together with the other appellants during the
trials in both the FIRs in view of Section 223(a) CrPC. The
appellant was acquitted in the Sessions trial arising out of FIR 96
on 29 November 2014 and in the trial arising out of FIR 187/
2012 on 29 January 2015. Though the High Court noted that "he
had earned a right and it should be slow in disturbing the same",
it yet remanded both the cases back for retrial "to maintain
balance and delivery of justice". There is merit in the submission
which had been submitted both by counsel for the appellant and
for the State of Punjab that the order of retrial wipes out the entire
record of evidence. The evidence which has been recorded during
the separate trials cannot exist for some of the accused and not
for the others. The effect of the decision of the High Court is to
relegate the appellant to a fresh trial together with the other
accused. The High Court has in fact directed that the trial would
be conducted afresh by observing that the accused be charged
together for the different offences committed by them.
[Para 45][607-F-G; 608-A-D]
1.9 The appellant has set up the plea that ordering a retrial
at this stage would be a matter of serious prejudice since crucial
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witnesses who deposed in regard to the manner in which the
investigation was conducted by the appellant have since died.
Apart from the above considerations, the High Court could not
have been oblivious of the seriousness of the alleged offences of
which the accused were charged. FIR 96 was registered on 27
November 2012 for offences punishable under Section 328, 363A,
366 and 376 read with Section 34 of the Penal Code. The appellant
was implicated on 11 January 2013 after the provisions of Sections
217, 218 and 120B were added. There was a serious allegation of
a gang rape having been committed on the prosecutrix which is
alleged to have ultimately resulted in her suicide on 26 December
2012 leading to the registration of FIR 100 under Section 306/34
IPC which was transferred to PS Samana and registered as FIR
187. The High Court by its impugned judgment remitted the
conviction and sentence of the accused and the acquittal of the
appellant to the trial court and ordered a retrial. With a lapse of
over 7 years since the date of the incident, a retrial would not
advance the cause of justice but would result in a serious
miscarriage of justice. The judgment of the High Court is a
travesty of justice. [Para 46][608-D-G; 609-A]
1.10 Even if it is conceded that the alleged offences
committed in FIR 96 and FIR 197 were committed in the course
of the same transaction, within the meaning of the phrase in
Section 223(d), in view of the interpretation in Cheemalapati
Ganeswara Rao's case, it does not warrant the exercise of
discretion to direct a retrial followed by a joint trial. It was
imperative for the accused-respondents to prove that the separate
trials caused a miscarriage of justice. The respondents have not
been able to demonstrate before the Court that separate trials
led to a miscarriage of justice. No explanation has been rendered
on the aspect of a miscarriage of justice. Though the High Court
has in the impugned judgment observed that the separate trials
in FIR 96 and FIR 187 led to a miscarriage of justice, no analysis
has been undertaken to explain the finding. Moreover, the High
Court has only observed that there 'may' be a miscarriage of
justice. Therefore, quite apart from the individual prejudice to
the appellant which has been brought out before the Court, the
holding of separate trials was not contrary to law and that there
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was no resultant failure of justice demonstrated to the satisfaction
of the High Court. [Para 47][609-B-E]
State of Andhra Pradesh v. Cheemalapati Ganeswara
Rao AIR 1963 SC 1850 : [1964] SCR 297 - relied on.
1.11 The State of Punjab is not in appeal before this Court
against the retrial which has been ordered by the High Court.
But as a matter of first principle, it is evident that even the appellant
has been able to establish that a retrial would be a matter of serious
prejudice since vital evidence which has been recorded during
the course of the trial would be obliterated as a result of the
death of the witnesses from the investigating team led by the
appellant. That apart, a retrial would not serve the ends of
ensuring that justice is done in a heinous crime alleged to have
been perpetrated on the prosecutrix resulting in her suicide.
[Para 48][609-E-F]
1.12 The impugned judgment and order of the High Court
is set aside. [Para 49][609-G]
Nathi Lal v. State of UP 1988 SC (Criminal) 638; Nathi
Lal v. State of UP (1990) Supp SCC 145; State of Andhra
Pradesh v. Cheemalapati Ganeswara Rao AIR 1963
SC 1850 : [1964] SCR 297; State of M P v. Bhooraji
(2001) 7 SCC 679 : [2001] 2 Suppl. SCR 128; Gangula
Ashok v. State of A P (2000) 2 SCC 504 : [2000] 1 SCR
468; Zahira Habibulla Sheikh v. State of Gujarat (2004)
4 SCC 158 : [2004] 3 SCR 1050; Satyajit Banerjee v.
State of West Bengal 2005 (1) SCC 115 : [2004] 6 Suppl.
SCR 294; Mohd Hussain v. State (Government of NCT
of Delhi) (2012) 9 SCC 408 : [2012] 10 SCR 480; Nar
Singh v. State of Haryana (2015) 1 SCC 496 : [2014]
12 SCR 218; Isaac v. Ronald Cheriyan (2018) 2 SCC
278 : [2018] 1 SCR 217; Mary Pappa Jebamani v.
Ganesan (2014) 14 SCC 477 : [2013] 11 SCR 1042;
R. Dineshkumar v. State (2015) 7 SCC 497 : [2015] 5
SCR 605; Chandra Bhal v. The State of UP 1971 (3)
SCC 983; Essar Teleholdings Limited v. Central Bureau
of Investigation (2015) 10 SCC 562 : [2015] 11 SCR
340 - referred to.
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Case Law Reference
(1990) Supp SCC 145
referred to
Para 18(iii)
(1964) 1 SCR 926
followed
Para 21, 42
[2001] 2 Suppl. SCR 128
referred to
Para 22
[2000] 1 SCR 468
referred to
Para 22
[2004] 3 SCR 1050
referred to
Para 23
[2004] 6 Suppl. SCR 294
referred to
Para 24
[2012] 10 SCR 480
referred to
Para 26
[2014] 12 SCR 218
referred to
Para 26
[2018] 1 SCR 217
referred to
Para 27
[2013] 11 SCR 1042
referred to
Para 27
[2015] 5 SCR 605
referred to
Para 34
1971 (3) SCC 983
referred to
Para 35
[2015] 11 SCR 340
referred to
Para 37
[2017] 1 SCR 469
relied on
Para 42
[1964] SCR 297
relied on
Para 47
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1051-1054 of 2021.
From the Judgment and Order dated 20.12.2019 of the High Court
of Punjab and Haryana at Chandigarh in CRA-S-1485-SB of 2015, CRAS-1741-SB of 2015, CRA-S-1940-SB of 2015 and CRA-S-1599-SB of
2016.
With
Criminal Appeal Nos. 1055-1059 of 2021.
Vipin Gogia, Ms. Christi Jain, Advs. for the Appellant.
Ms. Uttara Babbar, Manan Bansal, D. Bharat Kumar, Tadimalla
Bhaskar Gowtham, Aman Shukla, Hathindra Manda, Dasari Muralee
Mohan, Gopal Jha, Dr. Nishesh Sharma, Narender Kumar Verma, Advs.
for the Respondents.
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
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The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. These appeals arise from a judgment dated 20 December 2019
of a Division Bench of the High Court of Punjab and Haryana in a batch
of nine criminal appeals. The High Court remitted the orders of acquittal
and conviction arising out of two separate FIRs for fresh trial and directed
that the proceedings arising out of both the FIRs be clubbed together
under Section 223 CrPC and be tried together by one court. The issue
that arises for consideration is whether holding separate trials arising out
of two FIRs warrants the direction of the High Court for a de novo trial.
2. The case of the prosecution is that on 13 November 2012, the
prosecutrix along with Shinderpal Kaur went to Gugga Mari near Ghaggar
river for lighting earthen lamps. While they were returning home, a car
driven by accused Gurpreet Singh alias Aman approached them.
Balwinder Singh was alleged to be sitting in the rear seat of the vehicle.
Gurpreet Singh halted the car near the prosecutrix and Shinderpal Kaur
whereupon Balwinder Singh who was known to her opened the door of
the vehicle, grabbed her and threw her on the rear seat of the vehicle.
The doors and window panes of the vehicle were closed as a result of
which the alarms raised by the prosecutrix could not be heard by the
passers-by. Shinderpal Kaur left the spot. Balwinder Singh is alleged to
have committed sexual assault on the prosecutrix in the car after which
she was taken to the motor shed of accused Sandeep Singh. Sandeep
Singh handed over the key to Balwinder Singh after which the prosecutrix
is alleged to have been repeatedly raped by Balwinder Singh and Gurpreet
Singh in the precincts of the motor shed. The prosecutrix is alleged to
have been forcible administered an intoxicant as a result of which she
became semi-conscious. At 9.30pm, she was brought in the vehicle and
thrown near the Gurudwara of the village. The prosecutrix managed to
reach her home and narrated the incident to her mother Surjeet Kaur.
3. On 22 November 2012, the prosecutrix along with her relative,
sister and mother is alleged to have reached Police Station City Samana
from where they were directed to Police Station Ghagga.
4. On 27 November 2012, the prosecutrix got her statement
recorded with Sub-Inspector In charge Nasib Singh (the appellant) of
the Police Post at Badshahpur on the basis of which First Information
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Report1 96/20122 was registered at Police Station Ghagga, Badshahpur
under Sections 363, 366A, 376, 328 and 34 of the Indian Penal Code3.
The FIR named Balwinder Singh, Gurpreet Singh alias Aman and Sandeep
Singh as the persons who had committed acts of sexual assault on the
prosecutrix. It is alleged by the prosecution that though the appellant
received information from the prosecutrix of the alleged incident of rape,
no arrest was made and a proper investigation was not conducted.
5. On 26 December 2012, the prosecutrix committed suicide
leaving behind a suicide note naming Balwinder Singh, Gurpeet Singh
and Shinderpal Kaur to be responsible for her decision to end her life.
Immediately after the death of the prosecutrix, the appellant arrested
accused Balwinder Singh, Gurpeet Singh and Shinderpal Kaur. On the
basis of a statement made by Harvinder Kaur, a cousin of the prosecutrix,
FIR No.100/20124 dated 26 December 2012 was registered at PS Ghagga
against the appellant (SI Nasib Singh), Balwinder Singh, Gurpreet Singh
alias Aman and Shinderpal Kaur for abetting the suicide of the prosecutrix.
FIR 100 was cancelled since the suicide was committed within the
jurisdictional limits of PS Samana. On 31 December 2012, FIR No.187/
20125 was registered against Balwinder Singh, Gurpeet Singh and
Shinderpal Kaur for an offence punishable under Section 306 read with
Section 34 of the IPC at PS Samana.
6. A Special Investigating Team6 was constituted by the ADGP
(Crime) to enquire into the standard of investigation conducted by the
appellant in the gang rape case registered as FIR 96 of 2012. The SIT
concluded that the investigation conducted by the appellant in FIR 96of
2012 had loopholes. The Superintendent (Crime), Patiala who was a
member of the SIT arrested Sandeep Singh on 29 December 2012. The
appellant was dismissed from the Police Department on 27 December
2012. On appeal, the dismissal was set aside on 11 April 2014, and the
appellant was reinstated to the service.
1 "FIR"
2 "FIR 96"
3 "IPC"
4 "FIR 100"
5 "FIR 187"
6 "SIT"
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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7. On 15 January 2013,the appellant was implicated in respect of
FIR 96of 2012 concerning the gang rape of the prosecutrix and alleged
offences under Sections 217, 218 and 120B of the IPC were added. In
regard to FIR 187 of 2012 registered for the offence under Section 306/
34, the appellant was implicated following the addition of offences under
Sections 217, 218 and 120-B IPC. Charges were framed in FIR 187 of
2012 by the Additional Sessions Judge, Patiala on 5 April 2013. The
accused were charged under Section 306 IPC while the respondent in
addition was charged with Sections 217 and 218 IPC.
8. On 29 November 2014, the Additional Sessions Judge, Patiala
convicted (i) Balwinder Singh; (ii) Gurpreet Singh alias Aman;(ii)
Shinderpal Pal Kaur; and (iv) Sandeep Singh in the trial arising out of
FIR 96of 2012 for offences under Sections 376(2)(g), 366, 328 and 120B
of the IPC. A tabular statement of the conviction rendered and sentence
imposed by the Additional Sessions Judge on Balwinder Singh, Gurpreet
Singh alias Aman, Shinderpal Pal Kaur and Sandeep Singh is reproduced
below from the judgment of the Additional Sessions Judge.
Convicts Balwinder Singh and Gurpreet Singh @ Aman
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Convicts Shinderpal Kaur and Sandeep Singh (PDF Pg 587)
9. The Additional Sessions Judge, Patiala acquitted the appellantNasib Singh on the ground that there was nothing on record to prove
that he had conducted a tainted investigation. The Trial Judge relied
inter alia on the depositions of DW1 and PW20 and held:
(i)
The handwriting expert (DW1) has deposed that the writings
on the Zimni Report dated 27.11.2012 do not match with
the standard writings of Nasib Singh. The prosecution has
not examined any subordinate of Nasib Singh to prove
whether the Zimni report was written under the instructions
or in the absence of instructions of the appellant; and
(ii)
PW 20, the Head Constable who was a member of the
police party that conducted the preliminary investigation
headed by Nasib Singh deposed that the appellant conducted
all the proceedings according to the rules and procedure
governing the investigation.
10. As regards the offence punishable under Section 306 read
with Section 34 in FIR 187 of 2012, the Additional Sessions Judge, Patiala
convicted the three accused but acquitted the appellant by a judgment
dated 29 January 2015. The appellant was acquitted with the following
findings:
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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(i)
There was nothing on record to show that the photo copy
of the suicide note that was handed over to him by PW2
has been tampered with. PW22 (SP Jaipal Singh) who
conducted the investigation after the appellant was removed
from the investigation deposed that the preliminary
investigation conducted by the appellant was adopted by
him during his further investigation; and
(ii)
No other witness has deposed against the manner of
investigation conducted by the appellant. For the offence
under Section 218 to be attracted, the prosecution must be
able to prove that a public servant prepared a record knowing
that it is incorrect. In the instant case, there is no evidence
to prove that the appellant had the intention to provide an
incorrect record.
11. Nine appeals were filed before the High Court. Five appeals
were filed by the accused appellants against the judgment and order
dated 29 November 2014 of the Additional Sessions Judge, Patiala in the
trial arising out of FIR 96 of 2012 under Sections 328, 363A, 366, 376
and 34 of the IPC. Similarly, appeals were also filed against the conviction
of the accused and sentence imposed on 29 January 2015 arising out of
FIR 187 of 2012 dated 31 December 2012 under Sections 306read with
34, 217, 218 and 120B of the IPC.
12. The acquittal of the appellant of offences arising out of FIR
96 and FIR 187 was also challenged by the prosecutrix's mother in appeal
before the High Court. The High Court disposed of all the nine appeals
by a common impugned judgment and order dated 20 December 2019.
The High Court noted that the appeals arising out of the judgments of
the Additional Sessions Judge dated 29 November 2014 and 29 January
2015 be listed together for final hearing.
13. The High Court remitted the judgments of conviction and
acquittal dated 29 November 2014 and 29 January 2015 of the Additional
Sessions Judge in the trials arising out of FIR 96 and FIR 187 and directed
that trials be clubbed and tried together as provided under Section 223
CrPC. The High Court made the following observations during the course
of its judgment to arrive at the said conclusion:
(i)
Most of the witnesses in the proceedings arising out of the
different FIRs are common. They are just numbered
differently;
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(ii)
The evidence in FIR 187 was produced during the trial in
FIR 96;
(iii)
Both the offences arising out of FIR 96 and FIR 187 are
connected with each other. Serious prejudice would be
caused if two separate trials are held. The evidence in both
the FIRs will have to be scanned together;
(iv)
The court is vested with the discretion to decide if the FIRs
must be tried together or separately. While exercising the
discretion, the court should apply the test of whether trying
the FIRs separately would lead to illegality. However, in
this case both the offences in the separate FIRs "are so
connected together as to form part of the same transaction";
(v)
The case of the prosecution is that the prosecutrix committed
suicide because of the rape committed by the accused. In
the appeal filed by Gurpreet Singh alias Aman, an application
was filed under Section 391 of the CrPC to bring on record
additional facts to show that another person by the name of
Manpreet Singh had also attempted suicide on the same
day and at the same place as the prosecutrix and was taken
to the hospital by PW10-Harvinder Kaur, with whom the
prosecutrix was staying at the relevant time. FIR 1 dated
12 November 2013 was registered under Section 309 of
the IPC at PS SAS Nagar. Both the prosecution and defense
are relying on the facts and evidence in both the cases.
However, in view of the decision of the Supreme Court in
Nathi Lal v. State of UP7, where it was laid down that the
evidence in one case must not influence the decision in
another case, the evidence in the other case cannot be relied
on. In order to deliver justice, the evidence and facts arising
out of both FIR 96 and FIR 187 must be tried together
under Section 223 CrPC. The High Court observed:
"This Court has also noticed that CRM-24912-2019 has
been filed by accused - appellant Gurpreet Singh @
Aman in CRA-D-385-DB-2015, under Section 391
Cr.P.C. for permission to bring on record additional facts
to show that in fact another person named Manpreet
7 1988 SC (Criminal) 638
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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Singh, had also attempted suicide on the same day at
the same place as the deceased and was taken to hospital
by PW-10 - Harwinder Kaur (with whom the deceased
was staying at that time). FIR No.1 dated 12.01.2013
under Section 309 IPC was registered at Police Station.
SAS Nagar, was registered in this regard. The learned
counsel by putting forth this evidence wanted to assert
that in fact the deceased had concocted story in the
earlier FIR and had also committed suicide due to
different reason(s).
After going through the evidence and the facts mentioned
above this Court is of the view that both the alleged
offences are connected with each other in such a way
that a serious prejudice has been caused to both
prosecution as well as defence by the separate trials in
the said cases. This Court feels that unless the evidence
of both the FIRs is scanned together by the Court to
arrive at final conclusion, it may lead to failure of justice."
(vi)
Nasib Singh (appellant) was acquitted by the trial court in
respect of offences arising out of FIR 96 and FIR 187 and
the court must be slow to disturb it. However, because of
the apparent failure of justice, there is a necessity to remit
the case back for retrial. The High Court observed:
"We are conscious of the fact that one of the alleged
accused Nasib Singh who was tried together with the
appellants during trial in both the FIRs was acquitted by
the trial Court in 2014. Thus, he had earned a right and
we should be slow in disturbing the same. But when the
entire scenario is taken into consideration and is viewed
from the angle of failure of justice then this Court is of
the considered opinion that to maintain the balance and
delivery of justice, these cases should be remanded back
for retrial."
(vii)
The following two cases were thus remitted:
(a)
The judgment of conviction and order of sentence
dated 29 November 2014 of the Additional Sessions
Judge, Patiala arising out of FIR No.96 dated 27
November 2012;and
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(b)
The judgment of conviction and order of sentence
dated 29 January 2015 of the Additional Sessions
Judge, Patiala arising out of FIR No.187 dated 31
December 2012.
14. Nasib Singh is in appeal before this Court.
15. Leave has been granted.
Submissions
16. Mr Vipin Gogia, Counsel appearing on behalf of the appellant
submitted that:
(i)
Both sets of judgments - the judgment dated 29 November
2014 of the Additional Sessions Judge arising from FIR 96
alleging rape and the judgment dated 29 January 2015 arising
out of FIR 187 alleging abetment of suicide were rendered
by one and the same court and by the same judge;
(ii)
The appellant was acquitted by the Additional Sessions
Judge in both the Sessions Trials and no appeal was filed
by the State against the order of acquittal;
(iii)
The appellant who had been dismissed from service was
reinstated;
(iv)
 Though Section 386(a) of the CrPC empowers the
Appellate Court in an appeal from an order of acquittal to
inter alia reverse such an order and direct that a further
enquiry be made or that the accused be retried or committed
for trial, the power to order a retrial is of an exceptional
nature and none of the well-established grounds for the
exercise of the power have been demonstrated to exist in
the present case;
(v)
The order of the High Court remitting the judgment of
conviction and sentence imposed on the accused and
directing a fresh trial has caused serious prejudice to the
appellant since the order of acquittal in his favour has also
been set aside without any evaluation on merits and without
cause or justification;
(vi)
The judgment of the High Court would cause serious
prejudice because two crucial witnesses PW20- Head
Constable Ranja Ram and PW17-Head Constable Gurjeet
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
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Singh (who were part of the investigating team with the
appellant) have died and their depositions in regard to the
nature of the investigation conducted by the appellant would
be wiped out where fresh evidence has to be adduced at
the retrial;
(vii)
During the course of the trial, PW2, PW12, PW17, PW21
and PW22 were examined and their evidence would
demonstrate that the investigation has been properly
conducted by the appellant. The benefit of the evidence
which has been recorded during the course of the earlier
trials would be totally obliterated if the case is remitted for
retrial;
(viii) The appellant is currently 65 years old. A de novo trial
could cause severe distress to him; and
(ix)
Though the acquittal of the appellant was challenged by
the mother of the prosecutrix, it is material to note that she
has been declared hostile qua the appellant in the course of
the criminal trial.
17. On the other hand Ms. Uttara Babbar, Counsel appearing on
behalf of the State of Punjab who has ably presented the case, submitted
that:
(i)
Section 218 of the CrPC postulates the general rule of
separate trials for separate offences to which inter alia
Section 223 CrPC, which provides when persons may be
charged and tried together, is an exception;
(ii)
The High Court in the present case has applied the provisions
of Section 223(d) under which persons accused of different
offences committed in the course of the same transaction
may be charged and tried together but it is important to
note the precedents of this Court which establish that:
a)
A joint trial is not peremptory but lies at the discretion
of the court;
b)
Whether a joint trial should be held must be decided
at the beginning of the trials;
c)
The power of the Appellate Court to order a re-trial
is of an exceptional nature which may be exercised
only where there is a failure of justice;
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d)
The High Court has as a matter of fact not come to
the conclusion that there would be a failure of justice
but only that there may occasion a failure of justice
if a joint trial is not ordered; and
e)
It is a settled principle of law that an order of re-trial
wipes out the evidence from the record in which
event, it cannot exist for some accused and not for
others.
(iii)
Though the State has not filed an appeal before this Court
against the judgment of the High Court nonetheless, it is
open to it to submit that the High Court has committed a
manifest error in ordering a re-trial and remitting the
conviction and sentence imposed; and
(iv)
As a result of the impugned order of the High Court, there
would be a serious miscarriage of justice since the evidence
which has been recorded in both the trials on the basis of
which the other accused-respondents were convicted of
serious offences involving a gang rape of the prosecutrix
resulting in her committing suicide would be completely
obliterated and wiped out from the record.
18. Opposing the above submissions, Mr. D Bharat Kumar, Counsel
appearing on behalf of Balwinder Singh (Respondent No.4) has urged
the following submissions:
(i)
No appeal was filed by the State before this Court against
the impugned judgment of the High Court remitting the
conviction and sentence to the trial Court for a re-trial;
(ii)
There are three FIR's relating to the offences in the same
transaction- FIR 96/2012 arising out of the alleged gang
rape of the prosecutrix; FIR 187/2012 arising out of the
suicide of the prosecutrix and FIR 1/2013 involving
Manpreet Singh under Section 309 of the IPC and if they
are tried separately, it will lead to a miscarriage of justice;
(iii)
In view of the decision of this Court in Nathi Lal v. State
of UP8, the evidence in one criminal trial cannot be relied
upon in a cross-case. Therefore, remitting for clubbing of
the trials is the only option that would render justice;
8 (1990) Supp SCC 145
NASIB SINGH v. THE STATE OF PUNJAB & ANR.
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(iv)
The suicide of the prosecutrix is alleged to be a consequence
of the alleged gang rape which in itself is indicative of the
fact that both the gang rape and the abetment of suicide
fall within the ambit of Section 223(d) of the CrPC, which
provides that persons may be tried jointly where different
offences are alleged to be committed by different persons
in the course of the same transaction;
(v)
The High Court has recorded in the impugned judgment
that the prosecution had sought to rely upon the evidence
which was recorded in both the cases arising out of FIRs
96 and 187;and
(vi)
The order of retrial does not cause any prejudice to the
appellant since the High Court had directed that fresh
charges should be framed. It would be open to the appellant
to pursue his remedies of seeking a discharge at that stage.
19. The representation on behalf of the other accused persons is
as follows : Dr Nishesh Sharma, learned counsel, has entered appearance
on behalf of the accused - Gurpreet Singh. Mr Narender Kumar Verma,
learned counsel, has entered appearance on behalf of the accused -
Sandeep Singh. There is no appearance on behalf of the accused -
Shinderpal Kaur, though the office report indicates that she is served.
Since Shinderpal Kaur though served has not appeared in these
proceedings, we have requested Mr D Bharat Kumar to assist the Court
as amicus curiae. The submissions which have been urged by Mr D
Bharat Kumar would essentially cover the submissions of all the accused
- respondents on whether the High Court is justified in remitting their
conviction and sentence and ordering a re-trial.
Analysis
A. Power to Direct Retrial
20. Section 386 of the CrPC defines the powers of the Appellate
Court and is extracted below:
"386. Power of the Appellate Court.