The Supreme Court on Friday ruled that conviction or acquittal of an accused cannot be set aside merely on the ground that there was a possibility of a joint or a separate trial unless it is proven that the rights of the parties were prejudiced because of the joint or separate trial (Nasib Singh vs State of Punjab).
A Bench of Justices DY Chandrachud, Vikram Nath and BV Nagarathna held that 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.
“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,” the top court ruled.
An 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, the judgment said.
Importantly, relying on past judicial precedents the top court noted that while applying the principles enunciated in Sections 218 to 223 of Code of Criminal Procedure (CrPC) on conducting joint and separate trials, the trial court should apply a two-pronged test, namely,
(i) whether conducting a joint/separate trial will prejudice the defence of the accused; and/or
(ii) whether conducting a joint/separate trial would cause judicial delay.
The Court in its verdict also explained the following principles which govern ordering of a retrial:
(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 retrial. 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 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.
Some instance in which retrial can be ordered are as follows:
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.
In this case, a girl gang raped by three men, later died by suicide. The appellant Nasib Singh, who was the sub-inspector in charge when first information report was registered, was charged with tampering with the suicide note left behind by the girl.
It was alleged that he did not conduct proper investigation and no arrest was made.
The sessions court conducted separate trials for the appellant and other accused and acquitted the appellant but convicted the three accused.
On appeal, the Punjab and Haryana High Court did not go into the merits of the case. Instead, it ordered that the FIRs against the accused three and the policeman be treated together and a joint trial be conducted under Section 223 CrPC.
Accordingly, matter was sent back for trial. The appellant officer appealed to the Supreme Court against this High Court judgment ordering retrial.
The top court held that the appellant has been able to establish that a retrial would be a matter of serious prejudice since vital evidence which was recorded during the course of the trial would be obliterated as a result of the death of the witnesses from the investigating team lead by the appellant.
These were witnesses who had deposed during trial about the manner in which the investigation was conducted.
“A retrial will 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,” the Court further held.
Moreover, the High Court has only observed that there ‘may’ be a miscarriage of justice, the Supreme Court observed.
“Therefore, quite apart from the individual prejudice to the appellant which has been brought out before the Court, we are clearly of the view that 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,” the apex court ruled.
The top court while setting aside the High Court order restored the appeal before the High Court to be decided afresh on merits.
Read Judgment here: