# P. Manikandan v. Central Bureau of Investigation and Ors

- **Citation:** 2024 INSC 1007
- **Court:** Supreme Court of India
- **Decided:** 2024-12-19
- **Case number:** Criminal Appeal No. 5478 of 2024
- **Bench:** C.T. Ravikumar, Sanjay Karol
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-manikandan-v-central-bureau-of-investigation-and-ors-37401
- **Pages:** 28

## Headnote

Whether the High Court was justified in directing re-investigation
and retrial of the same offence on the same set of facts, after
acquitting the accused by giving him the benefit of doubt; Whether,
in the attending fact and circumstances, the de novo investigation
violated the principle of double jeopardy and the appellant's right
u/Art.20(ii) of the Constitution of India.
Headnotes†
Constitution of India - Art.20(ii) - Code of Criminal Procedure,
1973 - s.386 - The Trial Court held appellant guilty for the
offence punishable u/ss.364A and 302 of IPC - Appellant
preferred appeal - The High Court set aside the order of the
Trial Court and held that the prosecution had failed to establish
the guilt of the appellant beyond all reasonable doubts -
Consequently, appellant was acquitted of all charges -
However, the High Court further directed the transfer of all
relevant documents to the Central Bureau of Investigation with
the direction to conduct a de-novo investigation and submit
a final report - Correctness:
Held: In the present case, the High Court acquitted the appellant
and directed to transfer the documents and relevant material to
conduct the de novo investigation before CBI on the same facts
for the same offences and to proceed against the appellant in
accordance with law, by exercising the power u/s.386 of Cr.P.C -
S.386(b) of Cr.P.C and also various judgments of the Supreme
Court speak of retrial and not reinvestigation - S.173(8) of the
Cr.P.C provides for further investigation with the permission of
the magistrate, but not re-investigation - Such a concept, as it
appears, is only invoked in extraneous circumstances - The mere
observation that the investigating authorities may have taken a
*Author
1554
[2024] 12 S.C.R.
Supreme Court Reports
lackadaisical ethical approach does not warrant the accused being
put through the wringer once more for the same offence - The
transfer to CBI, as already observed must take place in special
circumstances - The High Court has not referred to any such
special circumstance arising in the present case - The direction of
the High Court, transferring the investigation to CBI and directing
them to re-investigate the offence allegedly committed, was without
the authority of law and, therefore, has to be set aside - As far
as principle of double jeopardy is concerned, the three conditions
were laid down in T.P. Gopalakrishnan: Firstly, there must have
been previous proceedings before a court of law or a judicial
tribunal of competent jurisdiction in which the person must have
been prosecuted - The said prosecution must be valid and not
null and void or abortive - Secondly, the conviction or acquittal in
the previous proceeding must be in force at the time of the second
proceeding in relation to the same offence and same set of facts,
for which he was prosecuted and punished in the first proceeding -
Thirdly, the subsequent proceeding must be a fresh proceeding,
where he is, for the second time, sought to be prosecuted and
punished for the same offence and same set of facts - In the
present facts, a previous proceeding did take place wherein the
Trial Court convicted the appellant and sentenced him to death -
There is no question as to the Court's competence or jurisdiction -
The first condition is, therefore, met - The acquittal awarded by
the High Court has to remain in force for the cardinal principle of
criminal jurisprudence of innocent until proven guilty applies and
cannot be displaced in except in circumstances otherwise provided
by law - The second principle is also met - Regarding the third
condition, had the order been for retrial, the court could have held
that the condition remained unmet; however, since the direction
was for re-investigation and that too by a different investigation
agency, it necessarily has to begin from zero - Hence, the second
investigation, chargesheet and examination of witnesses would
classify as meeting the third condition - In view of the discussio

## Text

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[2024] 12 S.C.R. 1553 : 2024 INSC 1007
P. Manikandan
v.
Central Bureau of Investigation and Ors.
(Criminal Appeal No. 5478 of 2024)
19 December 2024
[C.T. Ravikumar and Sanjay Karol,* JJ.]
Issue for Consideration
Whether the High Court was justified in directing re-investigation
and retrial of the same offence on the same set of facts, after
acquitting the accused by giving him the benefit of doubt; Whether,
in the attending fact and circumstances, the de novo investigation
violated the principle of double jeopardy and the appellant's right
u/Art.20(ii) of the Constitution of India.
Headnotes†
Constitution of India - Art.20(ii) - Code of Criminal Procedure,
1973 - s.386 - The Trial Court held appellant guilty for the
offence punishable u/ss.364A and 302 of IPC - Appellant
preferred appeal - The High Court set aside the order of the
Trial Court and held that the prosecution had failed to establish
the guilt of the appellant beyond all reasonable doubts -
Consequently, appellant was acquitted of all charges -
However, the High Court further directed the transfer of all
relevant documents to the Central Bureau of Investigation with
the direction to conduct a de-novo investigation and submit
a final report - Correctness:
Held: In the present case, the High Court acquitted the appellant
and directed to transfer the documents and relevant material to
conduct the de novo investigation before CBI on the same facts
for the same offences and to proceed against the appellant in
accordance with law, by exercising the power u/s.386 of Cr.P.C -
S.386(b) of Cr.P.C and also various judgments of the Supreme
Court speak of retrial and not reinvestigation - S.173(8) of the
Cr.P.C provides for further investigation with the permission of
the magistrate, but not re-investigation - Such a concept, as it
appears, is only invoked in extraneous circumstances - The mere
observation that the investigating authorities may have taken a
*Author
1554
[2024] 12 S.C.R.
Supreme Court Reports
lackadaisical ethical approach does not warrant the accused being
put through the wringer once more for the same offence - The
transfer to CBI, as already observed must take place in special
circumstances - The High Court has not referred to any such
special circumstance arising in the present case - The direction of
the High Court, transferring the investigation to CBI and directing
them to re-investigate the offence allegedly committed, was without
the authority of law and, therefore, has to be set aside - As far
as principle of double jeopardy is concerned, the three conditions
were laid down in T.P. Gopalakrishnan: Firstly, there must have
been previous proceedings before a court of law or a judicial
tribunal of competent jurisdiction in which the person must have
been prosecuted - The said prosecution must be valid and not
null and void or abortive - Secondly, the conviction or acquittal in
the previous proceeding must be in force at the time of the second
proceeding in relation to the same offence and same set of facts,
for which he was prosecuted and punished in the first proceeding -
Thirdly, the subsequent proceeding must be a fresh proceeding,
where he is, for the second time, sought to be prosecuted and
punished for the same offence and same set of facts - In the
present facts, a previous proceeding did take place wherein the
Trial Court convicted the appellant and sentenced him to death -
There is no question as to the Court's competence or jurisdiction -
The first condition is, therefore, met - The acquittal awarded by
the High Court has to remain in force for the cardinal principle of
criminal jurisprudence of innocent until proven guilty applies and
cannot be displaced in except in circumstances otherwise provided
by law - The second principle is also met - Regarding the third
condition, had the order been for retrial, the court could have held
that the condition remained unmet; however, since the direction
was for re-investigation and that too by a different investigation
agency, it necessarily has to begin from zero - Hence, the second
investigation, chargesheet and examination of witnesses would
classify as meeting the third condition - In view of the discussion,
this Court is of the view that the right enshrined in Article 20(2) of
the appellant stands violated. [Paras 12, 24, 26, 27, 31, 32, 33]
Code of Criminal Procedure, 1973 - Retrial and Reinvestigation
difference:
Held: There exists a clear difference between retrial and
reinvestigation - Retrial implies that the judicial process that starts
[2024] 12 S.C.R.
1555
P. Manikandan v. Central Bureau of Investigation and Ors.
after the investigation of the crime is complete shall be redone
from the start, whereas the latter implies that the police and other
investigating authorities are once again required to collect and
examine evidence in order to present charges before a Court, so
that the trial can commence on such freshly collected evidence.
[Para 23]
Case Law Cited
Ukha Kolhe v. State of Maharashtra [1964] 1 SCR 926 : AIR 1963
SC 1531 - followed.
Mohd. Hussain v. State (Govt. of NCT of Delhi) [2012] 10 SCR 480 :
(2012) 9 SCC 408; Ajay Kumar Ghoshal & Ors. v. State of Bihar &
Anr. [2018] 1 SCR 112 : (2017) 12 SCC 699; Nasib Singh v. State
of Punjab [2021] 13 SCR 566 : (2022) 2 SCC 89; Kailash Gour v.
State of Assam [2011] 16 SCR 318 : (2012) 2 SCC 34; State of
W.B. v. Committee for Protection of Democratic Rights [2010] 2 SCR
979 : (2010) 3 SCC 571; Mandakini Diwan and Anr. v. High Court
of Chhattisgarh and Ors [2024] 9 SCR 86 : 2024 SCC Online SC
2448; Maqbool Hussain v. State of Bombay [1953] 1 SCR 730 :
(1953) 1 SCC 736; T.P. Gopalkrishnan v. State of Kerala [2022]
14 SCR 478 : (2022) 14 SCC 323; S.A. Venkataraman v. Union
of India [1954] 1 SCR 1150 : (1954) 1 SCC 586; State v. Nalini
[1999] 3 SCR 1 : (1999) 5 SCC 253; Monica Bedi v. State of A.P.
[2010] 13 SCR 522 : (2011) 1 SCC 284 - relied on.
Devendra Nath Singh v. State of Bihar [2022] 15 SCR 692 : (2023)
1 SCC 48 - distinguished.
Satyajit Banerjee and Ors v. State of West of Bengal and Ors.
[2004] Supp. 6 SCR 294 : (2015) 1 SCC 115; Ajay Kumar Ghoshal
and Ors v. State of Bihar and Anr. [2017] 1 SCR 469 : (2017) 12
SCC 699; Zahira Habibulla H. Sheikh v. State of Gujarat [2004]
3 SCR 1050 : (2004) 4 SCC 158; Subrata Choudhury alias
Santosh Choudhury and Ors. v. State of Assam & Anr. [2024] 12
SCR 1 : 2024 SCC Online SC 3126; Amandeep Singh Saran v.
State of Chhattisgarh [2023] 16 SCR 435 : (2024) 6 SCC 541;
Deputy Inspector General of Police V. S. Samuthiram [2012] 11
SCR 174 : (2013) 1 SCC 598; Vinay Tyagi v. Irshad Ali [2012]
13 SCR 1005 : (2013) 5 SCC 762; Sangeetaben Mahendrabhai
Patel v. State of Gujarat [2012] 3 SCR 1155 : (2012) 7 SCC
621 - referred to.
1556
[2024] 12 S.C.R.
Supreme Court Reports
List of Acts
Constitution of India; Code of Criminal Procedure, 1973; Protection
of Children from Sexual Offences Act, 2012; Evidence Act, 1872;
General Clauses Act, 1897.
List of Keywords
Reinvestigation; Retrial; Principle of double jeopardy; Section 386
of Cr.P.C; Article 20(ii) of the Constitution; Faulty investigation.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
5478 of 2024
From the Judgment and Order dated 04.07.2023 of the High Court
of Judicature at Madras in CRLOP No. 5826 of 2023
Appearances for Parties
K. K. Mani, Ms. T. Archana, Rajeev Gupta, Advs. for the Appellant.
Vikramjit Banerji, Mrs. Archna Pathak Dave, A.S.Gs., Rupesh
Kumar, Sr. Adv., Mukesh Kumar Maroria, Saransh Kumar,
Mrs. Meera Patel, Ishaan Sharma, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Sanjay Karol J.
Leave Granted.
2.
The present appeal arises from the judgment and order dated 4th July,
2023 passed by the High Court of Judicature at Madras in CRL.O.
P. No.5826 of 2023 and CRL.M.P.Nos.3640 and 3642 of 2023,
whereby the High Court dismissed the petition for quashing filed by
the appellant under Section 482 of the Criminal Procedure Code,
19731 against the chargesheet/final report and proceedings pending
before the Special Court for the trial of cases under the Protection
1
hereinafter referred to as "Cr.P.C."
[2024] 12 S.C.R.
1557
P. Manikandan v. Central Bureau of Investigation and Ors.
of Children from Sexual Offences Act, 2012,2 Tiruvannamalai, Tamil
Nadu in Special S.C.No.42 of 2021.
3.
The crux of the present appeal is that on 19th June, 2013, a case was
registered bearing Crime No.139 of 2013 under Section 364A and
302 of the Indian Penal Code, 18603 against the accused namely,
P. Manikandan,4 wherein it was alleged that the appellant kidnapped
the 4-year-old child from Gandhi International Matriculation School,
Manglam by using his motorcycle and after murdering her, threw
away the dead body in Well.
4.
The background facts in which the present appeal has arisen are:
4.1 The father of the deceased, namely Paramasivam,5 and the
appellant were known to each other. The appellant borrowed
a sum of Rs. 5,00,000/- from the complainant due to losses
incurred in his brick making business and he failed to return
the money despite repeated demands from the complainant
for repayment. The Complainant and his wife, Usha, had
a daughter,6 who was 4 years old and studied at Gandhi
International Matriculation School, Manglam.7 The deceased
child was regularly taken to school by one Chandrasekar, the
van driver and in his absence, the appellant sometimes would
take the deceased child to and from the school. On 13th June
2013, at about 01.30PM the deceased child was found to be
missing from school. Allegedly, the father of the deceased
informed the appellant about the same and requested his
assistance in confirming her whereabouts. It was alleged that
the appellant arrived at the location after a delay of two hours,
pretending to be involved in the search for the deceased child,
but being unable to locate her, subsequently, a complaint was
filed at the Mangalam Police Station.
4.2 About a week later, the villagers informed the complainant
about a body floating in a well at Aarpakkam and the same was
2
hereinafter referred to as the "POCSO Act",
3
hereinafter referred to as 'IPC'
4
hereinafter referred to as the "Appellant"
5
hereinafter referred to as "Complainant"
6
hereinafter referred to as the "Deceased child"
7
hereinafter referred to as the "School"
1558
[2024] 12 S.C.R.
Supreme Court Reports
later identified as that of his daughter. On 19th June 2013, the
Complainant filed a complaint, which was registered as Crime
No.139 of 2013, initially recorded under the head of 'Child
Missing'; the case was later reclassified to include charges
of kidnapping for ransom and murder. It was alleged that on
13th June 2013, the appellant kidnapped the deceased child
from School, using his Hero Honda Splendor Motorcycle Plus
bearing registration no. TN25-L-2391 and after murdering her,
he disposed of her body in the well.
4.3 Thereafter, after completion of the investigation, the Mangalam
Police Station, filed chargesheet on 28th November 2013 before
the Learned Judicial Magistrate Court-II, Thiruvannamalai, who
took cognizance thereof and assigned PRC No.51 of 2013, and
committed the case to the Learned Fast Track Mahila Court,
Thiruvannamalai,8 where SC No. 102 of 2015 was assigned.
4.4 In order to prove the guilt of the accused, the prosecution
examined witnesses PWs 1 to 20 and exhibited P-1 to P-16
and M.O. 1 to M.O. 8. Upon consideration of evidence, the Trial
Court, vide judgment dated 31st January 2018, on the basis of
the last seen theory held that the appellant was guilty for the
offence punishable under Section 364A and 302 of the IPC.
Sentence awarded to the appellant was life imprisonment and
fine of Rs. 5,000/- for the offence under Section 304A IPC and
death penalty for the offence under Section 302 IPC subject to
the confirmation by the High Court of Madras. As required by
the statute, the judgment was referred to a Division Bench of
the High Court for confirmation of death sentence in Referred
Trial No.2 of 2018. Being aggrieved by the conviction and
sentence imposed upon him, the appellant preferred Criminal
Appeal No.102 of 2018 before the High Court.
4.5 On 24th July 2018, the High Court, after considering the evidence
on record, set aside the order of the Trial Court and came to the
conclusion that the prosecution had failed to establish the guilt
of the appellant beyond all reasonable doubts; therefore, held
that the appellant is entitled to the acquittal of all charges. The
High Court further directed the transfer of all relevant documents
8
hereinafter referred to as the "Trial Court"
[2024] 12 S.C.R.
1559
P. Manikandan v. Central Bureau of Investigation and Ors.
to the Central Bureau of Investigation,9 Chennai, with the
direction to conduct a de-novo investigation and submit a final
report within three months. The High Court further directed that
if the investigation reveals or confirms the involvement of the
appellant, the prosecution may proceed against the appellant
in accordance with law.
5.
Subsequently, CBI re-registered the case on 18th January 2019,
bearing FIR No.R.C.1/(S) of 2019 and after completion of the
investigation, CBI filed chargesheet dated 25th August 2020 bearing
Chargesheet No.2 of 2020 under Section 173 of Cr.P.C. against the
appellant for the commission of offence under Sections 364 and 302
of IPC in Special S.C No.42 of 2021 before Special Court for the
trial of cases under POCSO Act, Tiruvannamalai, Tamil Nadu, by
confirming the role of the appellant with regard to the commission
of offence of kidnapping of the deceased child.
6.
In the year 2023, appellant preferred Crl.O.P.No.5826 before the
High Court of Judicature at Madras under Section 482 of the Cr.P.C
seeking quashing of the chargesheet/final report No.2 of 2020 and
the pending proceeding of Special SC No.42 of 2021 on the ground
that once the appellant was tried by the Trial Court for an offence
and the appellate court acquitted the appellant of all charges, the
Court cannot order such acquitted person to be tried again for the
same offence on the same set of facts, after re-investigation.
7.
Resultantly, the High Court vide judgment and order dated 4th July,
2023 while dismissing the CRL.O.P.No.5826 of 2023, directed the Trial
Court to complete the trial and pass judgment, within a period of 30
days from the date of this order, without being influenced by any of
the observations either made in the order under Section 482 Cr.P.C
or in the order passed by the Division Bench in the Criminal Appeal
8.
The High Court vide the impugned order, after considering the
contentions of the parties, gave the following findings while dismissing
the Criminal Petition:
(i)
While considering the issue "whether the facts of the case
attracts Section 300(i) of Cr.P.C?", the High Court concluded
that the Division Bench rightly directed the CBI to conduct a
9
hereinafter referred to as "CBI".
1560
[2024] 12 S.C.R.
Supreme Court Reports
de novo investigation. The said order was not challenged by
the accused; he submitted himself to the trial. Having realized
that the trial is proceeding against him, the petitioner (appellant
herein) has filed the present petition on the baseless claim
that Section 300 Cr.P.C. offers him protection, which, in fact,
it does not.
(ii)
While relying on the decision of this Court in Satyajit Banerjee
and Ors v. State of West of Bengal and Ors.,10 Ajay Kumar
Ghoshal and Ors v. State of Bihar and Anr.,11 following
Zahira Habibulla H. Sheikh v. State of Gujarat12 (well known
as the 'Best Bakery' case), on the point that the Appellate court
has power under Section 386(b)(i) of Cr.P.C. to order retrial/
de novo trial if, it is satisfied that the omission or irregularities
has caused miscarriage of justice.
(iii) Section 300 (i) of Cr.P.C., qualified the protection only in case
the order of conviction or acquittal remains in force. Bare perusal
of the Sub Sections (2) to (5) of Section 300 of Cr.P.C., makes
it clear that explanation of "autrefois acquit", is not absolute but
subject to conditions and held that the acquittal in previous trial
with a direction for re-investigation is not an acquittal in force.
9.
This order rejecting the appellant's quashing petition is assailed before
this Court. Although questioned here is this order, challenge has also
been laid to the direction to conduct de novo investigation to CBI.
Learned counsel appearing on behalf of the appellant submitted that:
(i)
Article 20 (2) of the Constitution of India explicitly stipulates
that no person shall be prosecuted or punished for the same
offence more than once, as the appellant has previously been
acquitted on the same facts and for the same offence and,
therefore, subsequent prosecution in impermissible;
(ii)
This protection against double jeopardy is further reinforced
by the statutory provisions, including Section 300 of Cr.P.C.,
Section 40 of the Evidence Act, 1872, Section 71 of IPC and
Section 26 of the General Clauses Act, 1897.
10
(2015) 1 SCC 115
11
(2017) 12 SCC 699
12
(2004) 4 SCC 158
[2024] 12 S.C.R.
1561
P. Manikandan v. Central Bureau of Investigation and Ors.
(iii) Power under Section 386(b) of the Cr.P.C. does not include
the power to direct de novo investigation in case of an appeal
against conviction.
(iv) It was further submitted that an acquittal may be characterized
as 'honorable' when, after a thorough examination of the
prosecution's evidence, the court determines that the prosecution
has entirely failed to substantiate the charges brought against
the accused. In such circumstances, it may be inferred that
the accused has been acquitted in a manner that implies full
exoneration from blame.
(v)
In furtherance of the submissions, the learned counsel for appellant
relied upon various decisions of this court viz. T.P. Gopalkrishnan
v. State of Kerala,13 Subrata Choudhury alias Santosh
Choudhury and Ors. v. State of Assam & Anr.,14 Amandeep
Singh Saran v. State of Chhattisgarh,15 Deputy Inspector
General of Police V. S. Samuthiram,16 Union Territory,
Chandigarh Administration & Ors. v. Pradeep Kumar & Anr.,
Ajay Kumar Ghoshal & Ors. v. State of Bihar & Anr..17
10. The stand of the respondent/CBI as reflected from record is as under:
(i)
It was stated that the acquittal or discharge of the appellant was
not based on the merits of the case. The acquittal order passed
by the High Court does not have the effect of the final acquittal,
as the appellate proceedings did not result in a determination
by affirming the conviction or an acquittal on merits. The
proceedings constitute a continuation of the trial against the
appellant. Accordingly, the principle of double jeopardy under
Article 20 (2) of the Constitution of India and Section 300 of
Cr.P.C. does not apply.
(ii)
The circumstances of this case do not meet the condition
provided under Section 300 of Cr.P.C., in order to comply with
the provision under Section 300 of Cr.P.C, the previous trial
must pertain to the same offence and the same charges, and
13
(2022)14 SCC 323
14
2024 SCC Online SC 3126
15
(2024) 6 SCC 541
16
(2013) 1 SCC 598
17
(2017) 12 SCC 699
1562
[2024] 12 S.C.R.
Supreme Court Reports
the resulting order of conviction or acquittal must be final and
in force. The protection against double jeopardy, known as
"autrefois acquit," provided under Section 300, is not absolute
and is subject to the conditions specified in Sub-sections (2)
to (5) of Section 300 CrPC.
(iii) Given the specific circumstances of the case, the accused
can be retried for the same offence, as the previous trial has
been annulled. Consequently, there is no subsisting acquittal
or conviction in effect.
(iv) Further it was stated that the High Court has the power under
Section 368 of Cr.P.C to order a new trial on the same offence
or amend the charges and the Appellate Court has the power
under Section 386 of Cr.P.C, in pursuance of the decisions laid
down in Ajay Kumar Ghoshal & Ors. v. State of Bihar & Anr.,18
Ukha Kolhe v. State of Maharashtra,19 Mohd. Hussain v.
State (Govt. of NCT of Delhi).20 Additionally, it was stated
that the High Court has the power to order re-investigation
while relying on the judgment of this court in Devendra Nath
Singh v. State of Bihar.21
(v)
That the appellant did not avail the remedy of approaching the
High Court or this Court upon receiving summons from the Chief
Judicial Magistrate, Chengalpattu, or during the initial stages
of the trial proceedings. It was further stated that the appellant
approached the High Court only subsequent to the examination
of 34 prosecution witnesses and after the completion of the
chief examination of the concerned Investigating Officer, at that
stage the appellant was fully aware that sufficient evidence had
been adduced to sustain a conviction against him.
11. We have heard the learned counsel for the parties. The issues which
arise for the consideration before this court are:
(i)
Whether the High Court was justified in directing re-investigation
and retrial of the same offence on the same set of facts, after
18
(2017) 12 SCC 699
19
(1964) 1 SCR 926
20
(2012) 9 SCC 408
21
(2023) 1 SCC 48
[2024] 12 S.C.R.
1563
P. Manikandan v. Central Bureau of Investigation and Ors.
acquitting the accused by giving him the benefit of doubt? In
other words, when considering an appeal against conviction
under Section 386(b)(i) of Cr.P.C., is the High Court empowered
to direct re-investigation, if yes, then could such a direction be
given while acquitting the accused, in the very same order;
(ii)
Whether, in the attending fact and circumstances, the de novo
investigation violated the principle of double jeopardy and the
appellant's right under Article 20(ii) of the Constitution of India
and Section 300 of the Cr.P.C.
12. In the present case, the High Court acquitted the appellant and
directed to transfer the documents and relevant material to conduct
the de novo investigation before CBI on the same facts for the same
offences and to proceed against the appellant in accordance with
law, by exercising the power under Section 386 of Cr.P.C.
13. The power of the Appellate Court as described under Section 386
of Cr.P.C is extracted below:
"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 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
1564
[2024] 12 S.C.R.
Supreme Court Reports
(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 retried 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)
14. Section 386 (b) of Cr.P.C. enumerates power of the Appellate Court
which inter alia includes the power to order the appellant to be
retried by the competent authority or committed for trial in case of
appeal from a conviction. This court in several decisions deals with
the power of Appellate Court to direct a re-trial.
15. The Constitution Bench, while dealing with such an issue, that when
such power should be exercised by the Appellate Court in Ukha
Kolhe v. State of Maharashtra,22 observed that:
22
AIR 1963 SC 1531
[2024] 12 S.C.R.
1565
P. Manikandan v. Central Bureau of Investigation and Ors.
"11. An order for retrial of a criminal case is made in
exceptional cases, and not unless the appellate court
is satisfied that the Court trying the proceeding had no
jurisdiction to try it or that the trial was vitiated by serious
illegalities or irregularities or on account of misconception
of the nature of the proceedings and on that account in
substance there had been no real trial or that the Prosecutor
or an accused was, for reasons over which he had no
control, prevented from leading or tendering evidence
material to the charge, and in the interests of justice the
appellate court deems it appropriate, having regard to the
circumstances of the case, that the accused should be put
on his trial again. An order of re-trial wipes out from the
record the earlier proceeding, and exposes the person
accused to another trial which affords the prosecutor an
opportunity to rectify the infirmities disclosed in the earlier
trial, and will not ordinarily be countenanced when it is
made merely to enable the prosecutor to lead evidence
which he could but has not cared to lead either on account
of insufficient appreciation of the nature of the case or for
other reasons. "
(Emphasis supplied)
16. In the "Best Bakery Case", wherein the Trial Court directed the
acquittal of the accused person in a case of mass killings, the same
was upheld by the High Court of Gujarat while dismissing the criminal
appeal, this Court, after considering the facts and circumstances
of the case, directed the de novo trial of the accused person by
observing that:
"73. ... We are satisfied that it is a fit and proper case,
in the background of the nature of additional evidence
sought to be adduced and the perfunctory manner of trial
conducted on the basis of tainted investigation a retrial is a
must and essentially called for in order to save and preserve
the justice-delivery system unsullied and unscathed by
vested interests. We should not be understood to have
held that whenever additional evidence is accepted, retrial
is a necessary corollary. The case on hand is without
parallel and comparison to any of the cases where even
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such grievances were sought to be made. It stands on its
own as an exemplary one, special of its kind, necessary
to prevent its recurrence. It is normally for the appellate
court to decide whether the adjudication itself by taking
into account the additional evidence would be proper or
it would be appropriate to direct a fresh trial, though, on
the facts of this case, the direction for retrial becomes
inevitable."
17. A Three Judge Bench of this Court in Mohd. Hussain v. State (Govt.
of NCT of Delhi),23 held that:
41. The appellate court hearing a criminal appeal from
a judgment of conviction has power to order the retrial
of the accused under Section 386 of the Code. That is
clear from the bare language of Section 386(b). Though
such power exists, it should not be exercised in a routine
manner. A de novo trial or retrial of the accused should
be ordered by the appellate court in exceptional and rare
cases and only when in the opinion of the appellate court
such course becomes indispensable to avert failure of
justice. Surely this power cannot be used to allow the
prosecution to improve upon its case or fill up the lacuna.
A retrial is not the second trial; it is continuation of the
same trial and same prosecution. The guiding factor for
retrial must always be demand of justice. Obviously, the
exercise of power of retrial under Section 386(b) of the
Code, will depend on the facts and circumstances of each
case for which no straitjacket formula can be formulated
but the appeal court must closely keep in view that while
protecting the right of an accused to fair trial and due
process, the people who seek protection of law do not
lose hope in legal system and the interests of the society
are not altogether overlooked.
(Emphasis supplied)
18. While relying upon the decision of the Constitution Bench in Ukha
Kolhe (supra), this court discussed the scope of Section 386 of
23
(2012) 9 SCC 408
[2024] 12 S.C.R.
1567
P. Manikandan v. Central Bureau of Investigation and Ors.
Cr.P.C in Ajay Kumar Ghoshal v. State of Bihar,24 to the effect that:
"10. Section 386 CrPC deals with the powers of the
appellate court. As per Section 386(b) CrPC in an appeal
from a conviction, the appellate court may : (i) reverse the
finding and sentence and acquit or discharge the accused,
or order him to be retried 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.
11. Though the word "retrial" is used under Section 386(b)
(i) CrPC, the powers conferred by this clause is to be
exercised only in exceptional cases, where the appellate
court is satisfied that the omission or irregularity has
occasioned in failure of justice. The circumstances that
should exist for warranting a retrial must be such that where
the trial was undertaken by the court having no jurisdiction,
or trial was vitiated by serious illegality or irregularity on
account of the misconception of nature of proceedings.
An order for retrial may be passed in cases where the
original trial has not been satisfactory for some particular
reasons such as wrong admission or wrong rejection of
evidences or the court refused to hear certain witnesses
who were supposed to be heard.
12. "De novo" trial means a "new trial" ordered by an
appellate court in exceptional cases when the original trial
failed to make a determination in a manner dictated by law.
The trial is conducted afresh by the court as if there had not
been a trial in first instance. Undoubtedly, the appellate court
has power to direct the lower court to hold "de novo" trial.
But the question is when such power should be exercised..."
(Emphasis supplied)
19. This court in Nasib Singh v. State of Punjab,25 formulated the principles
emerging from several decisions on retrial given by this Court:
24
(2017) 12 SCC 699
25
(2022) 2 SCC 89
1568
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33. The principles that emerge from the decisions of this
Court on retrial can be formulated as under:
33.1. The appellate court may direct a retrial only in
"exceptional" circumstances to avert a miscarriage of justice.
33.2. Mere lapses in the investigation are not sufficient
to warrant a direction for retrial. Only if the lapses are so
grave so as to prejudice the rights of the parties, can a
retrial be directed.
33.3. 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.
33.4. 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 the miscarriage of justice caused with reference
to the evidence and investigatory process.
33.5. If a matter is directed for retrial, the evidence and
record of the previous trial is completely wiped out.
33.6. The following are some instances, not intended to
be exhaustive, of when the Court could order a retrial on
the ground of miscarriage of justice:
(a) The trial court has proceeded with the trial in the
absence of jurisdiction;
(b) The trial has been vitiated by an illegality or irregularity
based on a misconception of the nature of the proceedings;
and
(c) 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.
(Emphasis supplied)
20. In the present case, the High Court, after acquitting the appellant,
directed the CBI to re-investigate after considering the relevant
material and documents on record. A perusal of the judgment reveals
that the learned division bench discussed the material on record in
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1569
P. Manikandan v. Central Bureau of Investigation and Ors.
depth in arriving at the conclusion that "this is a case where there
is no evidence at all." Considering that this was an appeal from a
sentence of capital punishment, it was observed:
"15. It is not known on what basis, particularly there is an
acute dearth of evidence, the trial court has gone to the
extent of awarding death sentence..."
It would be worthwhile to refer to the two succeeding paragraphs
as well.
"16. The learned Additional Public Prosecutor would
point out the observation made by the trial court, while
giving conviction, stating that the sexual abuses against
children are increasing; that the child marriage is also on
the increase; that there is no protection for the children;
that the child who innocently followed the accused, while
not knowing fatefully unaware of, had been done to death;
that the act of the accused is beastly, the accused is liable
to be punished by hanging him to death, is totally illegal,
unjust and unwarranted.
16.1 Whether these observations alone, without there being
basic evidence connecting the crime and the accused,
are sufficient to award a capital punishment?. Only if the
evidence establishes the crime as against the accused,
while considering the quantum of punishment, they may
be relevant considerations. In any event, these factors
cannot be consideration to record a finding of guilt as
against the accused."
21. This Court has observed in Kailash Gour v. State of Assam26 that
any benefit accruing from faulty investigation ought to be given
to the accused. The necessary corollary thereof being that simply
because the investigation was less than satisfactory, the accused
should not be subjected to the same once more.
43. ... That an accused is presumed to be innocent till he
is proved guilty beyond a reasonable doubt is a principle
that cannot be sacrificed on the altar of inefficiency,
inadequacy or inept handling of the investigation by the
26
(2012) 2 SCC 34
1570
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police. The benefit arising from any such faulty investigation
ought to go to the accused and not to the prosecution. So
also, the quality and creditability of the evidence required
to bring home the guilt of the accused cannot be different
in cases where the investigation is satisfactory vis-à-vis
cases in which it is not. The rules of evidence and the
standards by which the same has to be evaluated also
cannot be different in cases depending upon whether the
case has any communal overtones or in an ordinary crime
for passion, gain or avarice.
(Emphasis supplied)
22. Having observed as extracted supra, the High Court held that the
appellant deserved acquittal. Keeping in view the aforesaid authorities,
the question then is, could the High Court have ordered the crime
to be re-investigated?
23. Firstly, what must be acknowledged is that there exists a clear
difference between retrial and reinvestigation. Retrial implies that
the judicial process that starts after the investigation of the crime is
complete shall be redone from the start, whereas the latter implies
that the police and other investigating authorities are once again
required to collect and examine evidence in order to present charges
before a Court, so that the trial can commence on such freshly
collected evidence.
24. Section 386(b) of Cr.P.C, extracted supra, as also the judgments
referred to in the earlier portion of this judgment, unanimously
speak of retrial and not reinvestigation. Section 173(8) of the
Cr.P.C provides for further investigation with the permission of the
magistrate, but not reinvestigation. Such a concept, as it appears,
is only invoked in extraneous circumstances. The mere observation
that the investigating authorities may have taken a lackadaisical
ethical approach does not warrant the accused being put through
the wringer once more for the same offence.
25. Learned counsel for the respondent while supporting the contention
that the High Court had the requisite power to order reinvestigation
cited the judgment of this Court in Devendra Nath Singh (supra),
wherein, relying on Vinay Tyagi v. Irshad Ali27 it has been observed
27
(2013) 5 SCC 762
[2024] 12 S.C.R.
1571
P. Manikandan v. Central Bureau of Investigation and Ors.
that fresh, de novo and reinvestigation are synonymous expressions
and the law applicable thereon would be the same. This observation,
we find, was made in the context of Section 482 Cr.PC or Article
226 of the Constitution of India. In the present case, however, the
direction for reinvestigation was given under Section 386 Cr.PC.
Since the applicable power is different in the present case, Devendra
Nath (supra) is distinguished on facts.
26. In that view of the matter, the direction of the High Court, transferring
the investigation to CBI and directing them to reinvestigate the offence
allegedly committed, was without the authority of law and, therefore,
has to be set aside. We may notice certain authorities of this Court
where observations have been made qua transfer of investigation
to C.B.I., as follows:-
(a) State of W.B. v. Committee for Protection of Democratic
Rights:28
"70. Before parting with the case, we deem it
necessary to emphasise that despite wide powers
conferred by Articles 32 and 226 of the Constitution,
while passing any order, the Courts must bear in
mind certain self-imposed limitations on the exercise
of these constitutional powers. The very plenitude
of the power under the said articles requires great
caution in its exercise. Insofar as the question of
issuing a direction to CBI to conduct investigation in
a case is concerned, although no inflexible guidelines
can be laid down to decide whether or not such
power should be exercised but time and again it
has been reiterated that such an order is not to be
passed as a matter of routine or merely because
a party has levelled some allegations against the
local police. This extraordinary power must be
exercised sparingly, cautiously and in exceptional
situations where it becomes necessary to provide
credibility and instil confidence in investigations
or where the incident may have national and
international ramifications or where such an order
may be necessary for doing complete justice and
28
(2010) 3 SCC 571
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enforcing the fundamental rights. Otherwise CBI
would be flooded with a large number of cases and
with limited resources, may find it difficult to properly
investigate even serious cases and in the process
lose its credibility and purpose with unsatisfactory
investigations."
(Emphasis Supplied)
(b) Mandakini Diwan and Anr. v. High Court of Chhattisgarh
and Ors:29
"14. It is true that power to direct CBI to conduct
investigation is to be exercised sparingly and such
orders should not be passed in routine manner.