“Retrial” can be ordered only when the omission or irregularity has occasioned in failure of justice

Supreme Court: Clearing the air over the power of the Courts to order “retrial”, the Court said that though the word “retrial” is used under Section 386(b)(i) Cr.P.C., 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.

In the present the accused in a dowry death case had appealed against his conviction before the Patna High Court. The High Court, however, remitted the case to the Trial Court for retrial on account of certain lapses on the part of Investigating Officer/trial court. Disagreeing with the view of the High Court, the bench of Dipak Misra and R. Banumathi, JJ said that the High Court pointed out certain lapses; but has not stated as to how such alleged lapses has resulted in miscarriage of justice necessitating retrial. Certain lapses either in the investigation or in the ‘conduct of trial’ are not sufficient to direct retrial. The High Court being the First Appellate Court is duty bound to examine the evidence and arrive at an independent finding based on appraisal of such evidence and examine whether such lapses actually affect the prosecution case; or such lapses have actually resulted in failure of justice.

It was further explained that 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 due to 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. [Ajay Kumar Ghoshal v. State of Bihar, 2017 SCC OnLine SC 74 decided on 31.01.2017]

 

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