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Review: SC says that ‘Retrial’ can be directed only in ‘exceptional’ circumstances to avert miscarriage of justice


In this roundup of court judgements, we look at Constitutional Courts’ remarks & directions on principles of retrial, forced labour, functioning of courts in UP, and police brutality.

Supreme Court: Retrial can be directed only in ‘exceptional’ circumstances to avert a miscarriage of justice.

In the case Nasib Singh Vs. State of Punjab, the Supreme Court established principles regarding the power of a court to order a retrial in a criminal case.

In the present case, an FIR was filed against Balwinder Singh, Gurpreet Singh and Sandeep Singh for committing rape. Later, the prosecutrix (female victim) committed suicide leaving behind a suicide note naming Balwinder Singh, Gurpreet Singh and Shinderpal Kaur. In this regard, another FIR (100 of 2012) was lodged against SI Nasib Singh, Balwinder Singh, Gurpreet Singh and Shinderpal Kaur for abetting the suicide of the prosecutrix. SI Nasib Singh was later implicated in the earlier FIR also. The Additional Sessions Judge, Patiala separately tried the cases arising out of two FIRs and convicted three accused but acquitted Nasib Singh. In appeals filed by convicts and the mother of the prosecutrix, the High Court ordered a retrial. 

Examining the facts of the appeal, the Supreme Court observed that the parties have not been able to demonstrate that separate trials led to a miscarriage of justice.

The bench of Justices DY Chandrachud, Vikram Nath and BV Nagarathna held that a conviction or acquittal of the accused cannot be set aside on the mere ground that there was a possibility 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.

The SC laid down the following principles regarding the power of a court to order a retrial in a criminal case:

  • The 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 retrial. Only if the lapses are so grave to prejudice the rights of the parties, can a retrial be directed.
  • 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.
  • 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 Appellant 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.
  • If a matter is directed for re-trial, the evidence and record of the previous trial are completely wiped out. 
  • The following are some instances when the Court could order a retrial on the ground of miscarriage of justice: 
  1. The trial court has proceeded with the trial in the absence of jurisdiction.
  2. The trial has been vitiated by illegality or irregularity based on a misconception of the nature of the proceedings.
  3. 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.

Allahabad HC: Paying ₹ 450 per month is ‘Forced Labour’ & a violation of Article 23.

In the case Tufail Ahmad Ansari Vs. State of UP & others, the Allahabad high court reprimanded the State government for paying Rs. 450 per month as wages to a Class-IV post since his initial engagement in 2001. The court held that this was amounts to a form of “Forced Labour” and strictly prohibited under Article 23 of the Constitution.

The high court was hearing a writ petition filed by Tufail Ahmad Ansari, an employee with the MD Eye Hospital, Prayagraj, since June 2001 on a Class-IV post.  The petition submitted that he was being paid wages at the rate of Rs. 450 per month since his initial engagement.

The petitioner submitted that despite him being entitled to be considered for regularization in terms of 2016 Rules, the case of the petitioner was not being considered.

The Standing Counsel submitted that in terms of a Government Order of 1992, the wages of ‘Kahar’ were increased from Rs. 400 to Rs. 500 per month and that was being paid to the petitioner.

The bench of Justice Pankaj Bhatia observed that it was beyond comprehension as to how the state government could exploit a Class-IV employee by continuing to pay him Rs. 450 per month for the last 20 years, which is less than the minimum wages as prescribed in the State.

The judgement mentions that the question of “other forms of Forced Labour” finds its place in Article 23 of the Constitution. This question came up for consideration before the Supreme Court in the case of People’s Union For Democratic Rights and Others Vs. Union of India and Others; (1982), wherein the plight of the workers engaged in the construction for the Asian Games, was highlighted before the Supreme Court.

In conclusion, the high court directed the state government to pay the minimum wages as prescribed in the State of Uttar Pradesh from the date of the initial appointment of the petitioner after deducting the amounts paid to him.

Further, the high court noted that according to the Uttar Pradesh Regularisation of Persons Working on Daily Wages 2016 rules, persons employed prior to 31 December 2001, are entitled to be considered for regularisation. Therefore, the high court directed that the petitioner be regularized within 4 months of the order.

Allahabad HC: Dissatisfied with UP govt on ‘serious’ issues related to courts functioning.

In the case In Re Vs. Zila Adhivakta Sangh Allahabad, the high court expressed its dissatisfaction over the manner in which the officers of the State are progressing on the serious issues pertaining to the functioning of the Courts in the State of Uttar Pradesh. 

The high court was hearing a suo moto case pertaining to the functioning of Courts in Uttar Pradesh.

In 2015, the high court registered a PIL (Public Interest Litigation) after the functioning of the High Court was hindered by unruly advocates. The high court had issued an array of directions to the State Government for making proper arrangements for safety, security and infrastructure of all the courts of State including District courts.

A seven-judge bench Acting Chief Justice Munishwar Nath Bhandari, Justice Pritinker Diwaker, Justice Naheed Ara Moonis, Justice Manoj Misra, Justice Mrs. Sunita Agarwal, Justice Surya Prakash Kesarwani, and Justice Manoj Kumar Gupta heard the case. 

With regards to upgrading safety measures for the High Court, the State had agreed that the Electronics Corporation of India would be roped in for the installation of CCTV cameras and their regular maintenance. 

With regards to the High Court’s infrastructure or allotment of land for construction of the Courts and residential buildings for the Subordinate Courts, the Administrative Committee of the high court had directed the District Judges to co-ordinate with the District Magistrates to identify land that can be made available for this purpose. Further, the high court also stressed the issue of the unavailability of adequate infrastructure to the POCSO courts in the state. 

However, the high court noted that no effective action has been taken though repeated reminders have been sent. In many districts, the process of acquisition has not been completed.

In conclusion, the Advocate General assured the high court that immediate decision on the said issues would be taken by the State Government. The matter was posted for a further hearing on 27 October 2021. 

Kerala HC: State sanction not required to prosecute policemen for their ‘illegal acts’.

In the case D. Rajagopal Vs. Ayyappan & Anr. and connected matter, the high court ruled that sanction stipulated under Section 197 Code of Criminal Procedure (CrPC) is not necessary to prosecute police officers in cases of police brutality since such acts are not related in any manner to the discharge of their official duties.

The case was regarding brutality by police officers of the Ezhukone Police Station. They were accused of brutally assaulting a man in custody causing cigarette burns on his tongue, making him unable to speak when produced before the Magistrate, among other things. 

The Judicial First Class Magistrate, Kottarakaram found them guilty and passed an order of conviction against them for offences punishable under Sections 323 and 324 read with Section 34 of the Indian Penal Code. The appellate court confirmed this conviction.

The revision petition was preferred on the primary contention that they were prosecuted without getting the sanction from the State Government as contemplated under Section 197 CrPC.

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Both the trial court and the appellant court took the view that sanction, as contemplated under Section 197 CrPC, is unwarranted in the present case since the acts alleged to have been committed by the accused are not related in any manner to the discharge of their official duties.

The bench of Justice Mary Joseph held that the trial and the appellate courts were not in error and were perfectly justified in finding the accused guilty of the offences under Sections 323 and 324 read with Section 34 IPC, convicting them and imposing punishments. In conclusion, the revision petitions were dismissed.

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About Author

Aprajita is driven by her ardent interest in a wide array of unrelated subjects - from public policy to folk music to existential humour. As part of her interdisciplinary education, she has engaged with theoretical ideas as well as field-based practices. By working with government agencies and non-profit organisations on governance and community development projects, she has lived and learned in different parts of the country, and aspires to do the same for the rest of her life.

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