WHEN CAN A CRIMINAL COURT ORDER RETRIAL-PATNA HC

WHEN CAN A CRIMINAL COURT ORDER RETRIAL-PATNA HC

-RIYA JAISWAL 

BACKGROUND :

In criminal law, most of the cases never make it to trial let alone retrial. The cases that do go to trial, a small percentage are retried, cases may be retried because of serious errors in the original trial that may have caused an unfair or due to improper result or when significant evidence of innocence comes to light.

The 5th Amendment contains the Double Jeopardy Clause, it  guarantees that no person shall be tried twice for the same crime and it will only come into effect if a person is charged with a crime then found innocent and when charged with the same crime again it means that the prosecutor is usually unable to request a retrial unless of some grave mishandling of justice.

Usually, the defendant files a motion for a retrial after a guilty verdict. If the judge denies the motion then the defendant may file an appeal to a higher court and ask to overrule the judge and grant a new trial. Few examples in which a new trial may be granted in the interest of justice are as follows:

• Attorney misconduct.

• Hopelessly deadlocked, jury means that they could not come to a unanimous verdict of being guilty or not guilty.

• The prejudicial error which was unfair and swayed the trial as juror misconduct or bias.

• Manifest necessity, which is an unforeseeable and overwhelming circumstance that makes the trial unfair or impossible to reach a fair result the unavailability of a key witness, illness of counsel, or juror misconduct.

• Newly discovered evidence.

The judge did not recuse themselves even though there was a conflict of interest.

CURRENT ISSUES:

The courts of appellate jurisdiction were empowered to order retrial in cases where the original trial had not been satisfactory and met out a gross miscarriage of justice. The Patna High Court on Wednesday remitted a case that involved the death of the Appellant's deceased wife on account of burns back to the trial court.

The reference was made to the ruling of the Apex Court in P. Ramesh v. State, AIR 2019 SC 3559.

In an appellate court hearing, a criminal appeal from a judgment of conviction has the power to order the retrial of the accused under Section 386 of the Code it is clear from the bare language of Section 386(b). Although such power exists it cannot be exercised in a routine manner. According to de novo trial or retrial of the accused should be ordered by the appellate court in exceptional and very  rare cases  when in the opinion of the appellate court the  course becomes indispensable to avert failure of justice.

READ ALSO: ANCESTRAL PROPERTY CANNOT BE SOLD BY NON-LEGAL HEIR - SC

Observing that the trial court had not properly evaluated the evidence placed on record and also it had proceeded with an attitude of dealing the case with leniency else the trial court could have taken into account the alternate offenses that would be attracted to the case. 

Justice Trivedi uttered through the judgment impugned  particularly, finding recorded by the learned lower court under para-16 and 17 its was perceived that learned lower court had already made up its mind to convict the appellant under Section 306 of the IPC and should be inflicted with lenient punishment otherwise, the learned lower court would have properly considered evidence, particularly, whether an offense under Section 302 IPC is made out or under Section 306 IPC . Even a word was not  spoken by the witnesses have been discussed, Section 304B IPC is not made out and in likewise manner why Section 302 IPC is not made out and how Section 306 of the IPC is made out. Due  to the fact that no reason has been assigned, therefore, the judgment is found deficient one on the score of non compliance of Sub-Section 1 of Section 354 of the CrPC.

The observations were made by the court while adjudicating upon an appeal which was filed by one Neyaz Ansari, impugning the judgment of conviction and order of sentence passed by the Sessions Court thereby he had been found guilty of an offense punishable under Section 306 IPC and sentenced to undergo RI for four years as well as to pay a fine of Rs. 5000/-.

Also, he had been accused of killing his wife by setting her on fire for non-fulfillment of his dowry demands and those allegations were leveled by the mother of the deceased.

Due to perusal of the trial court's record, Justice Trivedi noted that during the cross-examination nothing substantial had been elicited at the end of Appellant and rather, there happened to be an admission over the cause of death. Further, the court observed that the trial court had not applied its mind while passing the order inasmuch as the evidence of the witnesses had been copied in the judgment.

CONCLUSION:

The court felt that it would be fit to remit the case back for retrial and by doing so the court also remarked that sometimes, the prosecution case was based on conjectures and the reason being that the alleged incident occurred in the exclusivity of the accused. The trial court should try to extract the details of the incident from such accused under Section 106 of the Indian Evidence Act, Reliance was placed on Ranji Kumar Haldar v. the State of Sikkim, 2019(3) PLJR 358 (SC). The prosecution sharing the burden to prove its case beyond all reasonable doubts in certain circumstances, it happens to be a guess or expectation because of the inability of the prosecution to support its case on account of its inability. Due to lack of accessibility, on the other hand, being under exclusive knowledge of the accused as the circumstances so suggests such circumstances, is found duly cared under Section 106 of the Evidence Act which says that a person who has got exclusive knowledge is bound to divulge the same.

READ ALSO: POCSO: Accused convicted within a month of filing charge sheet