Question of Law
2. The questions which arise for our consideration are; One, whether, in the absence of the records of the Court of Trial, the appellate Court could have upheld the conviction and enhanced the quantum of fine? And Two, whether, given the language employed under Section 385 of the Code of Criminal Procedure, 1973, the present situation constitutes a violation of the accused’s fundamental rights under Article 21 of the Constitution of India?
6. Having so recorded, the Trial Court sentenced the Appellant to rigorous imprisonment of one year and rupees five hundred by way of fine (in default thereof, further imprisonment of six months) under Section 7 of the PC Act and rigorous imprisonment of two years and rupees five hundred by way of fine (in default thereof, further imprisonment of six months) under Section 13(2) of the PC Act.
Proceedings before the High Court
Records missing
7. Assailing the judgment of conviction and sentence, the High Court admitted the petitioner’s appeal on 07.12.1999. A perusal of the Order dated 04.03.2016 reveals that despite repeated summoning of records of the trial, no reply was received from the Court concerned and as a result, the District Judge was asked to furnish an explanation and, in any event, take steps for reconstruction of the record.
7.1 The record further reveals that “the entire record has been lost and is not traceable” and the documents sent as “reconstructed documents” do not constitute the relevant trial court record. They were found to be not to be in accordance with Rules nor endorsed by the Central Bureau of Investigation.
High Court convicted despite non-availability of records
8. The High Court, vide the impugned judgment dated 23.11.2022, upheld the conviction despite having noted on an earlier occasion that the reconstruction of records was not in accordance with rules and the admission of nonavailability Of material on record, for which the Appellant herein was in no manner responsible. Significantly, despite arguments, the Court did not discuss the merits of conviction.
The present appeal
11. The learned counsel for the Appellant states that the law is settled on the issue, and in the absence of such records, a conviction cannot be stated to be on firm grounds and is liable to be set aside. The learned counsel places reliance on Shyam Deo Pandey and Others v. State of Bihar [(1971) 1 SCC 855], State of U.P. v. Abhai Raj Singh and Another [(2004) 4 SCC 6]. He further placed reliance on High Court decisions, namely Ramesh Kaushik v. State of Delhi [2022 SCC Online Del 4185] of the Delhi High Court; Raghuvir Sahai and Others v. State of U.P [Criminal Appeal No.786 of 1979], Avdesh Rai and Others v. State of U.P [Criminal Appeal No.346 of 1984] and Tej Pal Singh and Others v. State of U.P [2015 SCC Online All 6581] of the Allahabad High Court.
Consideration by the Hon’ble Supreme Court
12. A conviction of any nature permanently marks a person’s character. It would be, in the specific circumstances of this case, unjustified. This is not to say that five hundred rupees as far back as 1995 was a small or insignificant amount; however, when the possibility of appeal is extinguished due to the absence of essential material, the perusal and consideration of which is required to take stock of the matter and then uphold or reverse, as the case may be, then the benefit of the doubt has to be extended to the accused when he is in no manner responsible for the same.
13. We must consider whether the nonavailability of trial court records before the High Court and upholding conviction, despite the absence thereof, infringes the right to life and liberty of the accused enshrined under Article 21 of the Constitution of India.
14. It is well settled that following “procedure established by law” in a criminal prosecution is a sacrosanct requirement.
17. In Manu Sharma v. State (NCT of Delhi)9(two Judge Bench), this Court has also noted that the due process of law shall deem to include fairness in trial. The Court gives a right to the accused to receive all documents and statements and move applications for the production of records relating to the case.
High Court must benefit from the documents produced in the trial
18. If a right of production of documents at the trial stage exists, it is a natural corollary that the High Court, sitting in appeal, must benefit from those documents. In the considered view of this Court, this is a demand of the abovementioned sacrosanct requirement.
19. As we have noted earlier, in the present case, despite efforts, documents such as the witness statements, statements under Section 313 Cr.P.C. are neither available nor have been able to be reconstructed. Therefore, upholding conviction in the absence of such documents cannot be said to be in consonance with due process of law and fairness.
21. The instant case is governed by Section 385 of the Code of Criminal Procedure, 1973.
22. A bare reading of the provision makes it clear that when appeals are not dismissed summarily, the Appellate Court shall call for the records of the Court below except in cases where the question for consideration is the legality of a sentence. There is undoubtedly a compulsion upon the Appellate Court to call for the record and then proceed to examine the merits of a case before it. That, as is prima facie observable, is not the case before us.
24. The abovementioned requirement is found in the Old Code (Criminal Procedure Code, 1898, now repealed), under Section 423 as well. Section 423 of the 1898 Code, corresponds to Section 385 of the Code of Criminal Procedure, 1898.
26. This Court in Biswanath Ghosh v. State of W.B [(1987) 2 SCC 55] (two Judge Bench) observed that an Appellate Court allowing a conviction without having the records before it and the evidence adduced by the prosecution is a flagrant miscarriage of justice.
29. In a case with similar circumstance, we notice that the Allahabad High Court in Sita Ram & Others v. State [1981 Cr.LJ, 65] has held that when the entire record was lost or destroyed and the reconstruction of the record was not possible, the Appellate Court shall order retrial provided the time lag date of incident and the date of hearing of appeal is short. If the same is long and/or the FIR, statement, of witnesses under Section 161 and other relevant papers are not available, the Appellate Court should not order retrial.
30. In numerous judgments rendered by various High Courts, a similar view to the effect that a conviction cannot be upheld in the absence of the records of the Court below has been expressed. Taking note of Sita Ram (supra), the time elapsed between the occurrence of the offence and the appeal being finally decided, these courts have held that in the absence of essential documents such as the FIR or witness statements, a retrial too cannot be said to be serving the ends of justice. [Khalil Ahmad v. State of U.P [1986 SCC OnLine All 211]; Vir Pal v. State [1999 SCC OnLine All 1348]; Hira Lal v. State of U.P [1999 SCC OnLine All 1392] and Bhunda and Ors. V. State of U.P [2001 SCC OnLine All 864].
31. In the present case, the impugned judgment of the High Court records the statement of the CBI that the records have “got lost”. The “reconstructed” record consists of the following:
i. FIR of RC 18(A)/95LKO;
ii. Complaint dated 03.05.1995 of Sri J.P.N. Upadhyay, CIT, Varanasi (2 pages);
iii. Photocopy of S.F.II dated 24.03.1995 (one page);
iv. Pretrap memorandum dated 3.5.95 (4 pages);
v. Recovery memo dated 3.5.1995 (5 pages);
vi. Search list dated 3.5.95 (5 pages);
vii. One file containing chargesheet (SFII) of Sri JPN Upadhyay and Notesheet. (Pages 1 to 6 & Notesheet PP2);
viii. Search list dated 4.5.95 (1 sheet);
ix. Site plan dated 3.5.95 (1 sheet);
x. Misc. Papers containing Draft chargesheet etc. (7 sheets);
xi. Sanction order dated 28.12.95.
Subsection, 2 of Section 385, requires that the parties are heard in light of the records received by the Court. The documents undoubtedly need to include the essential documents necessary to properly appreciate the appeal on its merits. Even the depositions of the witnesses, both prosecution and defence, have not been reconstructed and are not available for the Court. This position of disposal of an appeal on merits being only after perusal of record, has been held by a three Judge Bench in Bani Singh (supra).
32. The Court below, in our considered view, by taking a mutually contradictory view, proceeded to decide the appeal on merits sentencing the accused, forgetting that the challenge was also for conviction. And yet did not deal with the merits of the appeal, laying specific challenge to the judgment of conviction. The whole approach is illegal and erroneous. Firstly, it is observed that the record was missing, and then it casts the onus to produce the same on the Appellant.
Appeal court has to decide the appeal not by trial court judgment but based on the records
33. In light of the abovementioned discussion, the Accused, in appeal, has a right to have the record perused by the Appellate Court and, therefore, upholding a conviction by merely having noted that the counsel for the accused not having the record at the time of filing the appeal is “doubtful” and that “no one can believe” the appeal would have been filed without perusing the record, as observed by the High Court is not correct. The job of the Court of Appeal is not to depend on the lower Court’s judgment to uphold the conviction but, based on the record available before it duly called from the Trial Court and the arguments advanced before it, to come to a conclusion thereon.
34. In the facts at hand, the alleged offence in question was committed on 21.3.1995, and the judgment of the Trial Court was delivered on 7.12.1999. More than 28 years have passed since the commission of the offence. As already indicated, the relevant Trial Court record has not been able to be reconstructed, despite the efforts of the courts below. Hence, in our considered view, as discussed above, ordering a retrial is not in the interest of justice and will not serve any fruitful purpose. The time elapsed must be taken into consideration by the Court, and we may stress on that, only after taking due note of and taking steps to abide by the warning issued by this Court in Abhai Raj Singh (supra), as was correctly done in Sita Ram (supra).
Conclusions
35. Protection of the rights under Article 21 entails protection of liberty from any restriction thereupon in the absence of fair legal procedure. Fair legal procedure includes the opportunity for the person filing an appeal to question the conclusions drawn by the trial court. The same can only be done when the record is available with the Court of Appeal. That is the mandate of Section 385 of the CrPC. Therefore, in the considered view of this Court, it is not within prudence to lay down a straightjacket formula, we hold that noncompliance with the mandate of the section, in certain cases contingent upon specific facts and circumstances of the case, would result in a violation of Article 21 of the Constitution of India, which we find it to be so in the instant case.
36. The language of Section 385 shows that the Court sitting in appeal governed thereby is required to call for the records of the case from the concerned Court below. The same is an obligation, power coupled with a duty, and only after the perusal of such records would an appeal be decided.
Digitization process
42. Therefore, this Court finds it fit to issue the following directions:
1. The Registrar General of the High Courts shall ensure that in all cases of criminal trial, as well as civil suits, the digitization of records must be duly undertaken with promptitude at all District Courts, preferably within the time prescribed for filing an appeal within the laws of procedure.
2. The concerned District Judge, once the system of digitization along with the system of authentication of the digitized records is in place in their judgeship, to ensure that the records so digitized are verified as expeditiously as possible.
3. A continually updated record of Register of Records digitized shall be maintained with periodic reports being sent to the concerned High Courts for suitable directions.
4. Interlocutory application(s), if any, shall stand disposed of.
Accused Aquitted.
Party
JITENDRA KUMAR RODE vs. UNION OF INDIA – CRIMINAL APPEAL NO……………OF 2023 Arising out of SPECIAL LEAVE PETITION (CRL.) NO. 2063 OF 2023 – 24th April, 2023;
https://main.sci.gov.in/supremecourt/2023/5292/5292_2023_8_1504_43930_Judgement_24-Apr-2023.pdf
