Bombay HC: The Appellate court should remand the case if the trial court has given a finding on title over suit property without framing issue on that point

 In this suit though specific averment is made in plaint about title and the same has been refuted by defendant, no specific issue in that regard is framed by Trial Court. Similarly, as the question of fact and law relating to title is involved, it was not proper for First Appellate Court to record findings thereon for first time. This would have resulted into loss of the opportunity of first appeal to aggrieved party. {Para 13}.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Appeal From Order Nos. 24, 22 of 2022, Civil Application Nos. 6863 and 12966 of 2022

Decided On: 10.04.2023

Laxmibai Vs. Sandeep

Hon'ble Judges/Coram:

R.M. Joshi, J.

Citation:  MANU/MH/1396/2023.

Read full Judgment here: Click here.

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Bombay HC: The Appellate court should remand the case if there is dispute regarding possession of suit property

Considering nature of dispute between adjoining owners of agricultural lands, the real dispute between the parties is required to be decided finally. Pertinently the suit of Sandeep was dismissed on the ground that he did not cause measurement of the land prior to filing of the suit. Similarly, in case of Laxmibai, she also did not lead evidence to substantiate the western side boundary of her land bearing gut bearing 383. It is settled law that the dispute between the parties in respect of encroachment, shall not be decided on oral evidence but by measurements of disputed lands. Though present case is not for a removal of encroachment but there is dispute as to who is having title and possession over the disputed 74 R land, in such case also to bring finality of dispute it is just and necessary to measure the lands of rival parties. The order of remand cannot be considered as shortcut for disposal of appeals, but in facts and circumstances of the case it had no other option but to relegate the suits back of the Trial Court. {Para 16}

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Appeal From Order Nos. 24, 22 of 2022, Civil Application Nos. 6863 and 12966 of 2022

Decided On: 10.04.2023

Laxmibai Vs. Sandeep

Hon'ble Judges/Coram:

R.M. Joshi, J.

Citation:  MANU/MH/1396/2023

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Supreme Court: Under which circumstances the appellate court should not remand the case for de novo trial

On the facts of the present case and the nature of order passed by the High Court, the enunciations and observations in the case of Sanjay Kumar Singh (supra) are of no application whatsoever as none of the parties have sought any permission to adduce evidence nor the High Court has specified as to what specific evidence was considered necessary to enable it to pronounce judgment or for any substantial cause. Moreover, it does not appear from the judgment of the High Court if the Plaintiff-Respondent No. 1 (Appellant before the High Court), ever projected that the Trial Court did not allow her to produce any evidence that was sought to be produced. It is also not borne out if any of the parties at all made out any case for production of additional documents or oral evidence with reference to the applicable principles. Hence, the general observations of the High Court cannot be correlated with Rule 27(1) either. With respect, we are constrained to apply the observations of this Court in Municipal Corporation, Hyderabad (supra) to say that the present order of remand has been passed only on ipse dixit of High Court sans any reason or justification. {Para 12}

13. It gets perforce reiterated that in the suit filed by Respondent No. 1, the Trial Court had indeed returned its findings on the basis of evidence on record. Whether those findings are sustainable or not is a matter entirely different and the High Court may examine the same but merely because the High Court could not reach to a conclusion on preponderance of probabilities, the evidence on record could not have been treated as insufficient so as to not pronounce the judgment in terms of Rule 24 of Order XLI Code of Civil Procedure.

14. In regard to the want of any particular evidence, we may observe in the passing that if the Court finds any particular evidence directly within the control and possession of a party having not been produced, the necessary consequences like those specified in illustration (g) to Section 114 of the Evidence Act3 may follow but, merely because a particular evidence which ought to have been adduced but had not been adduced, the Appellate Court cannot adopt the soft course of remanding the matter. We would hasten to observe that we are not commenting on the merits of the case either way. The observations herein are only to indicate that the remand of the suit for trial de novo cannot be considered justified in the present case from any standpoint.

15. For what has been discussed hereinabove, suffice it would be to sum up that for a few tentative observations about certain circumstances existing in favour of the Plaintiff and certain other circumstances existing in favour of the Defendants and then, with another observation that Plaintiff was a vital witness, the High Court was not justified in remanding the matter for trial de novo without recording any finding if the Plaintiff was prevented from examining herself or from adducing any other evidence as also without explaining as to on what ground the decree was being reversed.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1491 of 2023 

Decided On: 27.02.2023

Sirajudheen Vs. Zeenath and Ors.

Hon'ble Judges/Coram:

Dinesh Maheshwari and Sudhanshu Dhulia, JJ.

Author: Dinesh Maheshwari, J.

Citation: MANU/SC/0177/2023,2023 SCCONLINE SC 196.

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Constitution Bench Judgment of Supreme Court: Guidelines for exercise of power U/S 319 of CRPC

 III. What are the guidelines that the competent court must follow while exercising power Under Section 319 Code of Criminal Procedure?"

(i) If the competent court finds evidence or if application Under Section 319 of Code of Criminal Procedure is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage.

(ii) The Court shall thereupon first decide the need or otherwise to summon the additional Accused and pass orders thereon.

(iii) If the decision of the court is to exercise the power Under Section 319 of Code of Criminal Procedure and summon the Accused, such summoning order shall be passed before proceeding further with the trial in the main case.

(iv) If the summoning order of additional Accused is passed, depending on the stage at which it is passed, the Court shall also apply its mind to the fact as to whether such summoned Accused is to be tried along with the other Accused or separately.

(v) If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned Accused.

(vi) If the decision is that the summoned Accused can be tried separately, on such order being made, there will be no impediment for the Court to continue and conclude the trial against the Accused who were being proceeded with.

(vii) If the proceeding paused as in (i) above is in a case where the Accused who were tried are to be acquitted and the decision is that the summoned Accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case.

(viii) If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power Under Section 319 of Code of Criminal Procedure can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional Accused to be summoned in the split up (bifurcated) trial.

(ix) If, after arguments are heard and the case is reserved for judgment the occasion arises for the Court to invoke and exercise the power Under Section 319 of Code of Criminal Procedure, the appropriate course for the court is to set it down for re-hearing.

(x) On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly.

(xi) Even in such a case, at that stage, if the decision is to summon additional Accused and hold a joint trial the trial shall be conducted afresh and de novo proceedings be held.

(xii) If, in that circumstance, the decision is to hold a separate trial in case of the summoned Accused as indicated earlier;

(a) The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against summoned Accused.

(b) In the case of acquittal the order shall be passed to that effect in the main case and then proceed afresh against summoned Accused.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 885 of 2019, 

Decided On: 05.12.2022

 Sukhpal Singh Khaira  Vs. The State of Punjab

Hon'ble Judges/Coram:

S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanian and B.V. Nagarathna, JJ.

Author:A.S. Bopanna, J.

Citation: MANU/SC/1577/2022.

Read full Judgment here: Click here

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Whether Appellate court should direct joint trial of accused even if the accused has not shown any prejudice due to separate trial?

 Even if it is conceded that the alleged offences committed in FIR 96 and FIR 197 were committed in the course of the same transaction, within the meaning of the phrase in Section 223(d), in view of the interpretation in Cheemalapati Ganeswara Rao (supra), it does not warrant the exercise of discretion to direct a retrial followed by a joint trial. It was imperative for the accused-respondents to prove that the separate trials caused a miscarriage of justice. The respondents have not been able to demonstrate before the Court that separate trials led to a miscarriage of justice. No explanation has been rendered on the aspect of a miscarriage of justice. Though the High Court has in the impugned judgment observed that the separate trials in FIR 96 and FIR 187 led to a miscarriage of justice, no analysis has been undertaken to explain the finding. Moreover, the High Court has only observed that there ‘may’ be a miscarriage of justice. 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. {Para 47}

48. We are conscious of the fact that the State of Punjab is not in appeal before this Court against the retrial which has been ordered by the High Court. But as a matter of first principle, it is evident that even the appellant has been able to establish that a retrial would be a matter of serious prejudice since vital evidence which has been 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. That apart, 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.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal Nos. 1051-1054 of 2021

Nasib Singh Vs The State of Punjab 

Author: Dr Dhananjaya Y Chandrachud, J

Dated: October 08, 2021.

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Supreme Court: Court to conduct suit de novo after return of plaint

 Modern Construction (supra), referred to the consistent
position in law by reference to Ramdutt Ramkissen Dass vs.
E.D. Sassoon & Co., Amar Chand Inani vs. The Union of
India, Hanamanthappa vs. Chandrashekharappa, (1997) 9
SCC 688, Harshad Chimanlal Modi (II) (supra) and after also
noticing Joginder Tuli (supra), arrived at the conclusion as
follows:
“17. Thus, in view of the above, the law on the
issue can be summarised to the effect that if
the court where the suit is instituted, is of the
view that it has no jurisdiction, the plaint is to
be returned in view of the provisions of Order 7
Rule 10 CPC and the plaintiff can present it
before the court having competent jurisdiction.
In such a factual matrix, the plaintiff is
entitled to exclude the period during which he
prosecuted the case before the court having no
jurisdiction in view of the provisions of Section
14 of the Limitation Act, and may also seek
adjustment of court fee paid in that court.
However, after presentation before the court of
competent jurisdiction, the plaint is to be
considered as a fresh plaint and the trial is to
be conducted de novo even if it stood
concluded before the court having no
competence to try the same.”

Joginder Tuli (supra) was also noticed in Harshad
Chimanlal Modi (II) (supra) but distinguished on its own facts.
17. We find no contradiction in the law as laid down in Modern
Construction (supra) pronounced after consideration of the law
and precedents requiring reconsideration in view of any conflict
with Joginder Tuli (supra). Modern Construction (supra) lays
down the correct law. We answer the reference accordingly.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 2904 OF 2020

M/S. EXL CAREERS  Vs  FRANKFINN AVIATION SERVICES  PRIVATE LIMITED 

NAVIN SINHA, J.
Dated: August 05, 2020

Citation: 2020(5) MHLJ 358

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Whether the court should pass specific order for new trial/de novo trial after alteration or addition of charge?

 The matter can be viewed from another angle also. Section 216 of the Code empowers the Court to alter or add to any charge at any time before the judgment is pronounced and provides that after such alteration or addition of the charge the Court is required to read and explain the same to the accused in accordance with Sub-section (2) thereof. It is further laid down under Sub-section (3) that if in the opinion of the Court the alteration or addition to a charge is not likely to prejudice the accused in his defence or the prosecutor in the conduct of the case the Court may in its discretion proceed with the trial immediately with the altered or added charge. Sub-section (4) provides that if the alteration or addition is such that the proceeding immediately with the trial is likely to prejudice the accused or the prosecutor the Court may either direct a new trial or adjourn the trial for such period as may be necessary. Section 217 of the Code provides that whenever a charge is altered or added to by the Court after the commencement of the trial the prosecutor and the accused shall be allowed to recall or to summon and examine with reference to such alteration or addition any witness who has already been examined unless the Court for reasons to be recorded in writing considers that the desire to recall or re-examine such witness was only for the purposes of vexation or delay or defeating the ends of justice. Besides, it permits the prosecutor and the accused to call any further witness whom the Court may think it to be material. On a combined reading of the above two sections it is, therefore, evident that after an alteration or addition of the charge the interest of the prosecution and the accused has to be safeguarded by permitting them to further examine or cross examine the witness already examined, as the case may be, and by affording them an opportunity to call other witnesses. It is undoubtedly true that discretion has been given to the Court to direct a new trial after addition or alteration of any charge, but it does not mean that every such addition or alteration in the charge which has been read over and explained to the accused would lead to inevitable inference that the Court has directed a new trial for them. It, therefore, follows that unless the Court passes a specific order and directs a new trial it cannot be presumed that a new trial has commenced only because an alteration or addition to a charge which has been read over and explained to the accused has been made. Indeed the order dated April 30, 1987 shows that while directing the prosecution to examine the 4 witnesses afresh the 5th Court adjourned the case for further trial and did not direct fresh trial. This apart, any such direction given by the Court has to be judged on the touchstone of prejudice to the accused or the prosecution. In the instant case, as has already been noticed after the addition of charges the prosecution expressly stated that they did not want to further examine the four witnesses already examined but they were willing to produce them if the accused so wanted. The accused, however, did not avail of this opportunity in accordance with Section 217 of the Code and, therefore, it is too late in the day for them to raise a grievance on that score. We hasten to add that even if we had found that there was any irregularity in the continuation of the trial against the appellants after the additional charges were framed, we would not have been justified in setting aside the impugned judgment on that ground alone for there is not an iota of material on record wherefrom it can be said that a failure of justice has occasioned thereby. To put if differently, in our view in such a case Section 465 of the Code would have squarely applied.{Para 23}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 34 of 1992

Decided On: 21.03.1995

Ranbir Yadav  Vs.   State of Bihar

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Whether the court can examine witnesses again in de novo trial?

But so far as the other option is concerned, while earlier he could resummon the witnesses and recommence the inquiry or trial - which necessarily meant a de novo trial - he can now only resummon a witness who has already been examined for further examination and discharge him after such further examination, cross-examination and re-examination, if any. It is evident therefore that now the Magistrate or Judge can exercise his judicial discretion only for further examination of a witness already examined and not for fresh examination of witnesses for a fresh trial. Obviously, keeping in view the inevitable frequent changes in the office of the Magistrate and Judge and in order to provide a speedy trial the legislature has taken away the well established right of the accused to claim a de novo trial and that of the Court to so direct by express words of the amending statute of 1955. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 34 of 1992

Decided On: 21.03.1995

Ranbir Yadav  Vs.   State of Bihar

Hon'ble Judges/Coram:

Dr. A.S. Anand and M.K. Mukherjee, JJ.

Equivalent citations: 1995 AIR 1219, 1995 SCC (4) 392,JT 1995 (3) 228 1995 SCALE (2)331,MANU/SC/0245/1995

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Whether De novo proceeding is to be initiated after return of plaint?

The provisions of Section 151 would come to the aid of the Court, as no Code can possibly make provisions so as to meet every situation which may arise during the pendency of the suit. It is a situation where inherent jurisdiction of this Court would come to the aid and supply the vacuum. The inherent jurisdiction of the Court would normally be exercised in the interest of justice and for attainment of object of expeditious disposal of suits. May be it is the creation of the applicants themselves that the Court has lost pecuniary jurisdiction and the applications under Order 7 Rule 10 and 10(A) are pending or that the order has been passed for return of plaint but the plaint as a matter of fact has not been returned to the plaintiffs as of today. Thereafter interim orders in the present petitions were passed in favor of the petitioners. In these circumstances, it is difficult for this Court to hold that there is no suit or proceedings in the suit, pending before the trial Court. The Legislature in its wisdom has worded the language of Section 24 in wide terms by empowering the High Court to transfer any suit or appeal or other proceedings pending before it for trial or disposal to any Court subordinate to it. In other words, the meaning of the word "such or other proceedings pending in any court" cannot be restricted or construed so as to exclude the proceedings as contemplated under Order 7 Rule 10, 10(A) of the Act.

17. The present are the cases which have been filed by the plaintiffs in the Court of Competent jurisdiction. However, earlier they were transferred to the District Courts in view of the notification and now the district courts have lost pecuniary jurisdiction as a result of the order of the Court at the behest of the parties. The interim orders, undertakings have continued for years together. In some cases evidence has been recorded. It will be travesty of justice if the proceedings have to commence de novo right from the stage of filing a written statement as the plaintiff would be returned only plaint, to be presented before the court of competent jurisdiction there is nothing in the provisions of Order 7 Rule 10 which on its plain reading or by necessary implication be construed as a bar to maintainability of a petition under Section 24 of the Code....

27. It is held, on the basis of the above reasoning, and the line of decisions following Joginder Tuli (supra) and Aviat Chemicals (supra), the proceedings in the present case do not have to commence de novo, but from the stage they were in the court of the Additional District Judge.

IN THE HIGH COURT OF DELHI

FAO(OS) 64/2013 and C.M. APPL. 1784/2013

Decided On: 28.11.2013

 Narendar Singh Vs. The Indian Institute of Architects

Hon'ble Judges/Coram:

S. Ravindra Bhat and Najmi Waziri, JJ.

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Whether examination of witnesses in absence of accused is curable irregularity?

The order passed by the High Court in the present matter was not to
enable the Prosecutor to rectify the defects or infirmities in the evidence or
to enable him to lead evidence which he had not cared to lead on the earlier  occasion. The evidence in the form of testimony of those twelve witnesses
was led and those witnesses were cross-examined. There was no infirmity
except the one that the evidence was not led in the presence of the
appellants. The remedy proposed was only to rectify such infirmity, and not
to enable the Prosecutor to rectify defects in the evidence.
25. We must also consider the matter from the stand point and perspective
of the victims as suggested by the learned Amicus Curiae. Four persons of a
family were done to death. It is certainly in the societal interest that the
guilty must be punished and at the same time the procedural requirements
which ensure fairness in trial must be adhered to. If there was an infraction,
which otherwise does not vitiate the trial by itself, the attempt must be to
remedy the situation to the extent possible, so that the interests of the
accused as well as societal interest are adequately safeguarded. The very
same witnesses were directed to be de novo examined which would ensure
that the interest of the prosecution is subserved and at the same time the
accused will have every right and opportunity to watch the witnesses
deposing against them, watch their demeanor and instruct their counsel
properly so that said witnesses can be effectively cross-examined. In the
process, the interest of the accused would also stand protected. On the other

hand, if we were to accept the submission that the proceedings stood vitiated
and, therefore, the High Court was powerless to order de novo examination
of the concerned witnesses, it would result in great miscarriage of justice.
The persons who are accused of committing four murders would not
effectively be tried. The evidence against them would not be read for a
technical infraction resulting in great miscarriage. Viewed thus, the order
and directions passed by the High Court completely ensure that a fair
procedure is adopted and the depositions of the witnesses, after due
distillation from their cross-examination can be read in evidence.
26. We, therefore, see no reason to interfere with the order passed and the
directions issued by the High Court in the present matter. We affirm the
view taken by the High Court and dismiss these appeals.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL Nos.656-657 OF 2019

ATMA RAM  Vs  STATE OF RAJASTHAN

Uday Umesh Lalit, J.
Dated:April 11, 2019.

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When appellate court should remand case for de novo re- trial?

 The trial Court in the present case has proceeded to decree the suit essentially relying on the Commissioner's report and on the assumption that the said report has been proved. For assuming that the said report has been proved, the trial Court perhaps took note of the fact that defendant did not raise any objection with reference to the Commissioner's report. Merely because no objection was raised by the defendant to the Commissioner's report that does not mean that the report stands proved on record. There is established procedure known to law by which the Commissioner's report can be proved on evidence. That has not been done in the present case. In such a situation, the trial Court could not have decided the suit on merits. For, in absence of any oral evidence or for that matter evidence by way of affidavit of any party, the issues as framed cannot be decided as having been established one way or the other. In the circumstances, there is palpable and manifest material irregularity committed by the trial Court in the conduct of the trial in the present case. Indubitably, this would warrant exercise of powers under Section 99 read with Order 41, Rule 23A of the Code so as to remand the case to the trial Court for a de novo trial.

IN THE HIGH COURT OF BOMBAY

First Appeal No. 474 of 1988

Decided On: 09.08.2002

Khurshed Banoo Vs. Vasant Mallikarjun Manthalkar

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Whether it is necessary to conduct fresh trial after return of plaint?

The issue raised in this matter is no longer res integra. In the case of Harshad Chimanlal Modi (II) v. DLF Universal Ltd. and another MANU/SC/2521/2005 : (2006) 1 Supreme Court Cases 364, on which heavy reliance has been placed by the learned counsel for petitioners, the Honourable Apex Court has held that when the plaint is returned by the Court not having jurisdiction to be presented before the Court having jurisdiction, it is not a case of "transfer" and it is a case of lack of jurisdiction of the first Court and that, in such an event, there is in the subsequent Court, no continuation of proceeding initiated in the wrong Court. The Honourable Apex Court has further held that this is for the reason that the proceedings initiated in the wrong Court were the proceedings taken by the Court not having jurisdiction over the subject matter of the proceeding and, therefore, would stand vitiated in the eye of law. This is the reason why the Honourable Apex Court held that in such a case, fresh trial is necessary.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 7700 of 2015

Decided On: 09.02.2017

 Shri Gajanan Sahakari Sakhar Karkhana Ltd.Vs. Yashsree Engineering Works and Ors.

Hon'ble Judges/Coram:

S.B. Shukre, J.

Ciation: 2017(2) ALLMR 407

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When court should not order retrial of criminal case?

 The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the accused under Section 386 of the Code. That is clear from the bare language of Section 386(b). Though such power exists, it should not be exercised in a routine manner. A ‘de novo trial’ or retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice. Obviously, the exercise of power of retrial under Section 386(b) of the Code, will depend on the facts and circumstances of each case for which no strait jacket formula can be formulated but the appeal court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked.”

18. As discussed earlier, the High Court has not shown as to how the alleged lapses pointed out by the High Court have resulted in miscarriage of justice. When the accused prefers an appeal against their conviction and sentence, the appellate court is duty bound to consider the evidence on record and independently arrive at a conclusion. In our considered view, the High Court erred in remitting the matter back to the trial court for fresh trial and the impugned order cannot be sustained.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(Before Dipak Misra and R. Banumathi, JJ.)

Ajay Kumar Ghoshal etc. 

v.

State of Bihar & Anr. 

Criminal Appeal Nos. 119-122 of 2017

Decided on January 31, 2017

Citation: 2017 SCC OnLine SC 74,AIR 2017 SC 804

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Leading Supreme court judgment on de novo trial

The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It should be limited to the extreme exigency to avert a failure of justice. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate court itself or to direct such additional evidence to be collected by the trial court. But to replay the whole laborious exercise after erasing the bulky records relating to the earlier proceedings, by bringing down all the persons to the court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting a failure of justice. The superior court which orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles to reach the court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.

Supreme Court of India

State Of Madhya Pradesh vs Bhooraji & Ors on 24 August, 2001

Bench: K.T. Thomas, K.G. Balakrishnan

CASE NO.:Appeal (crl.) 851 of 2001

Citation:(2001) 7 SCC 679

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When de novo trial is not permissible in case of dishonour of cheque?

Remitting the matter for de novo trial
should be exercised as a last resort and should be
used sparingly when there is grave miscarriage of
justice   in   the   light   of   illegality,   irregularity,
incompetence or any other defect which cannot be
cured at an appellate stage. The appellate Court
should be very cautious and exercise the discretion
judiciously while remanding the matter for de novo
trial.
60.6.  While examining the nature of the trial
conducted by the Trial Court for the purpose of
determining   whether   it   was   summary   trial   or
summons trial, the primary and predominant test

to be adopted by the appellate Court should be
whether it was only the substance of the evidence
that was recorded or whether the complete record
of   the   deposition   of   the   witness   in   their   chief
examination,   cross   examination   and   reexamination
in verbatim was faithfully placed on
record. The appellate Court has to go through each
and every minute detail of the Trial Court record
and   then   examine   the   same   independently   and
thoroughly   to   reach   at   a   just   and   reasonable
conclusion.”
5. Now, let me examine the present matter in the light of
the aforesaid observations of the apex Court.
I have seen the evidence that was adduced before the
court in respect of two witnesses examined by complainant and
their cross­examination. The proceedings were completed in four
days and perusal of the cross­examination of both these witnesses
shows that the detailed cross­examination was made by counsel
for the respondent, so also affidavit on evidence was also in detail
and in fact tenor of the evidence adduced by the complainant and
the cross­examination clearly shows that the case was tried as
summons trial.  In my opinion, merely because summary form was
used for explaining the particulars and evidence was recorded only

in English and not in Marathi, one cannot come to the conclusion
that the format used in recording of the evidence in English could
decide whether a case was summary trial or summons trial.  The
substance of the evidence must be seen.   The evidence of two
witnesses   for   the   complainant   was   recorded   so   also   crossexamination
was also done on four various dates.  Perusal of the
cross­examination shows that full dress trial was held and it is
with that understanding, both the parties joined the trial even till
statement under section 313 of Cr. P. C. also recorded.
6. I have perused the record and I find that the evidence
was recorded, cross­examination was conducted and complete trial
was held.   Perusal of the record nowhere shows that, in fact,
summary trial was held. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL WRIT PETITION NO.170/2015

Shri Sukhdeo Ganeshram Tardeja, V  Shri Rajesh Dayaram S adhwani,

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CORAM:­ A. B. CHAUDHARI, J.
DATED :­ 09.07.2015
Citation: 2016 ALLMR(CRI)2534

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Whether de novo trial should be resorted in exceptional circumstances?

 A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It should be limited to the extreme exigency to avert "a failure of justice". Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has got the plenary powers to revaluate and reappraise the evidence and to take additional evidence on record or to direct such additional evidence to be collected by the Trial Court. But to replay the whole laborious exercise after erasing the bulky records relating to the earlier proceedings by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes imperative for the purpose of averting "failure of justice". The superior Court which orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the trouble to reach the Court and deposed their versions in the very same case. The re-enactment of the whole labour might give the impression to the litigant and the common man that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation [See State of M.P. v. Bhooraji MANU/SC/0481/2001 : (2001) 7 SCC 679].

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2221 of 2014 (Arising out of Special Leave Petition (Crl.) No. 5623 of 2012),

Decided On: 16.10.2014

Appellants: J.V. Baharuni
Vs.
Respondent: State of Gujarat

Hon'ble Judges/Coram:Ranjana Prakash Desai and N.V. Ramana, JJ.

Citation;2015ALLMR(Cri)357(SC), (2014)10SCC494

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Dishonour of cheque - Fresh recording of evidence by successor Magistrate When not necessary?

Mr. Huzefa Ahmadi, learned senior counsel appearing for the appellant Bank pointed out that the law laid down by this Court in the above authority is that when a proceeding is conducted as a summary trial, and when one Magistrate has partly heard the case and is succeeded by another Magistrate, that second Magistrate has to re-hear the whole case afresh and he cannot start from the stage the first Magistrate left it. There was no question of the High Court asking the entire matter to be looked into by another Magistrate de novo, in the present case because, in fact, the evidence had not been recorded in a summary manner, but it was recorded in full. Mr. Sanjanwala, learned counsel appearing for the respondents, on the other hand, submits that the law laid down in Nitinbhai Saevatilal Shah & Anr. Vs. Manubhai Manjibhai Panchal & Anr., (supra) be followed.


Supreme Court of India

Mehsana Nagrik Sahkari Bank Ltd vs Shreeji Cab Co.& Ors.Etc on 12 July, 2013

Bench: H.L. Gokhale, Madan B. Lokur

Citation;2013 (4) Crime 351 (SC)

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When court should not permit de novo trial in dishonour of cheque case?

Criminal - De novo Trial - Section 138 of Negotiable Instruments Act, 1882 and Section 326 (3) of Criminal Procedure Code ,1973 (CrPC) - Petitioners were convicted for dishonour of cheque by Trial court and session court - Present petition filed for quashing of proceedings and directing de novo trial - Whether proceedings should be quashed or de novo trial should be ordered - Held, Petitioner had examined himself, his witnesses including bank witnesses - Details of evidence demonstrated that statement of Petitioner was recorded - Petitioners had taken matter to several Courts inspite of it being time bound matter - Trial court had evaluated all aspects and rejected application of denovo trial - Evidence was recorded by courts below word by word not in form of notes or substance Disposal of case by courts below would not in any way vitiate trial - No need for quashing proceedings or directing de novo trial - Petitions dismissed.

BOMBAY HIGH COURT

Shyambahadur Purshottam Sharma and Another Vs. Sudhakar Narshu Poojary and Another

Judge : K.U. CHANDIWAL

Decided On : Aug-23-2013

Citation; 2014(2) MHLJ 806 BOM

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