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Bhajan Lal and others v. State - CRIMINAL APPEAL No. 476 of 1979  RD-AH 6940 (17 April 2007)
(Court No. 46)
Crl. Appeal No. 476 of 1979
Bhajan Lal and others Vs. State of U.P.
Hon'ble Amar Saran, J.
Hon'ble R.N. Misra, J.
Heard Sri P.N. Misra for the appellant and learned AGA.
This appeal has been filed for challenging the conviction and sentence of the appellants to imprisonment for life under sections 302 read with 34 IPC by an order dated 30.1.1979 passed by the IV Addl. District and Sessions Judge, Bareilly, in ST No. 105 of 1978. After summoning the record by this Court a report was received from the Officer in charge, Record Room, Bareilly judgeship, dated 20.1.1984 that the record was not available after the fire incident which occurred in the civil courts building at Bareilly in the night of 18/19.11.1979.
An order was passed thereafter by a Division Bench of this Court dated 22.11.1993 for reconstruction of the record within 6 weeks. However, in spite of the said order and the reminder dated 31.3.2004 passed by another Division Bench, no report of the Sessions Judge was received, until an order dated 21.9.1995 was passed by the Bench of Hon. G.P. Mathur and Hon. Kundan Singh, JJ. directing the office to send a reminder to the district judge within 3 days who was to submit a report within 2 weeks and also to explain why the orders passed by the Court on 22.11.1993 and 31.3.1994 had not been complied with. Learned Sessions Judge was also directed to make an enquiry from the police office as to whether any paper of the case were available in that office or not. Thereafter, it appears, a report dated 4.11.1995 of the District Judge, Bareilly, has been received stating that it was not possible to reconstruct the record and the report of the concerned police station also shows that no record relevant to the case was available with the police office.
However, our attention has been drawn to the decision of the apex Court in State of U.P. Vs. Abai Raj Singh and another: [AIR 2004 SC 3235] which was another case of burnt record as a result of the same fire which had broken out in the Bareilly civil courts on 18/19.22.1979 wherein the record of the present appeal was also destroyed. In Abhai Raj Singh's case this Court had passed an order on 1.11.1993 for reconstruction of the record at the Sessions Judge level. However, when no response was received from the Sessions Judge within 3 months, the High Court after noting that no communication had been received from the Sessions Judge, had drawn an inference that reconstruction of the record was not possible, and had passed an order dated 25.2.1994 that the appellants shall not be arrested, and were not required to surrender to their bail bonds, which were cancelled.
The Apex Court in Abhay Raj Singh's case (supra) declared the order to be illegal and observed as follows in paragraph 6:
"The powers of the Appellate Court when dealing with an appeal from a conviction are delineated in sub-clauses (i), (ii) and (iii) of clause (b) of Section 386 of the Code. The Appellate Court is empowered by Section 386 to reverse the finding and sentence and acquit. Therefore, the acquittal is possible when there is reversal of the finding and sentence. The Appellate Court is also empowered to discharge the accused. The third category which seems to be applicable to the present case is a direction for re-trial by a Court of competent jurisdiction subordinate to the Appellate Court or committed for trial. For exercise of the powers in cases of first two categories, obviously a finding on merits after consideration of the materials on record is imperative. Where that is not possible because of circumstances like the case at hand i.e. Destruction of the records, the proper course for the Appellate Court would be to direct re-trial after reconstruction of the records if in spite of positive and constructive efforts to reconstruct the records the same was impossible."
The apex Court had thereafter remitted the matter to the High Court for fresh consideration and directed that the High Court to direct the reconstruction of the record within a period of 6 months from all available or possible sources. In case it found that the reconstruction was not practicable, then it might order retrial and from that stage the law was to take its normal course. However, it was pointed out that if re-trial and fresh adjudication by the sessions court was also rendered impossible due to loss of vital important basic records, only in that event the earlier judgment of the High Court would apply and the matter would stand closed. The relevant part of paragraph 10 of the order of the apex court reads as follows:
"If it finds that reconstruction is not practicable but by order retrial interest of justice could be better served - adopt that course and direct retrial - and from that stage law shall take its normal course. If only reconstruction is not possible to facilitate High Court to hear and dispose of the appeals and the further course of retrial and fresh adjudication by sessions Court is also rendered impossible due to loss of vitally important basic records, in that case and situation only, the direction given in the impugned judgement shall operate and the matter shall stand closed."
However Sri P.N. Mishra vehemently contended that this Court should itself call for a fresh report and decide whether the basic documents which would facilitate a re-trial are available or not and in case the same are not available it should itself pass the order closing the case in the light of Abhai Raj Singh's case.
We find that already this matter has become extremely old and the appeal is pending since 1979. We have also seen the great difficulties and the number of orders needed before the communication was received from the District Judge Bareilly on 4.11.1995 that reconstruction of the record was not possible. If we again intitiate the exercise again for enquiring whether basic documents can be procured from any place or not for facilitating re-trial further time will be lost before we can obtain an appropriate response from the District Judge concerned. Futhermore we think the District Court would be in the best position to decide whether re-trial was possible in the context of the basic documents being available or unavailable.
In this view of the matter we direct this case to be remitted back to the trial court for re-trial which may then dispose of the matter in accordance with the directions of the apex Court in the case of State of U.P. Vs. Abhai Raj Singh and another (supra).
Before parting, we would like to observe that a disturbing fact has been brought to our notice, that this is not an isolated case where the record of the case has gone missing or it has been destroyed and where efforts are being made by this Court to order reconstruction of the records or re-trial in the light of the directions in Abhai Raj Singh's case, and that there are in fact a large number of such cases where the records have become untraceable. As often this exercise is undertaken long after the record was reported lost, often even the police papers such as FIR, inquest, 161 Cr.P.C statements, postmortem report etc. in the case diary which may have facilitated reconstruction or re-trial have also been lost or destroyed or weeded out, and invariably there is no co-operation from the Counsel for the accused and even from the prosecution Counsel or the State, it has enabled guilty persons to escape unpunished, who may even have been instrumental in the disappearance of the records in their cases. We therefore think that the Registry to issue a circular to all the district judges to immediately communicate to the police stations concerned where the crime was registered through the S.S.P/ S.P.s in charge of the districts to preserve the police papers and records in such cases, and ensure that they are not weeded out or lost or otherwise destroyed in cases where the trial Court records have been reported to be missing, and also to immediately initiate police investigations into the circumstances of the loss of the records, especially where foul play may be suspected. A communication should also be immediately sent to the High Court and the Registry for obtaining immediate orders from the bench concerned directing the concerned District Judges to initiate proceedings for reconstruction of the lost record, or for re-trial so that timely action may be taken for ensuring compliance of the Apex Court's orders in Abhai Raj Singh's case in letter and spirit, and for ensuring that the guilty do not escape punishment and the process of justice is not derailed by the machinations of wily and unscrupulous accused.
We therefore order the Registrar General to take steps for issuing a circular to all the District Judges for communication to all subordinate Courts for compliance on the lines suggested hereinabove, and to take the other steps suggested.
Office is also directed to communicate this order and papers in the case for re-trial as directed hereinabove in the present case to the District Judge Bareilly within a week who shall try to get the re-trial completed, if it is possible within 4 months and report compliance to this Court.
With these observations this appeal is disposed of.
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