| Popis: |
While dealing with a criminal appeal, it is to be borne in mind that the appellate court may do what the trial court could do and cannot do what the trial court could not do, because the appellate court is a “court of error”. As per sub-clause (b) (i) of Section 386 of the Criminal Procedure Code, 1973 (Cr.P.C.), the appellate court has power to order retrial of the case by a court of competent jurisdiction subordinate to such appellate court. Though the word ‘retrial’ is used under Section 386 (b) (i) of the Cr.P.C., the powers conferred by this clause is to be exercised only in exceptional cases, where the appellate court is satisfied that the omission or irregularity has occasioned in failure of justice. The circumstances that should exist for warranting a retrial must be such that where the trial was undertaken by the court having no jurisdiction, or trial was vitiated by serious illegality or irregularity on account of the misconception of nature of proceedings. An order for retrial may be passed in cases where the original trial has not been satisfactory for some particular reasons such as wrong admission/ wrong rejection of evidences or the court refused to hear certain witnesses who were supposed to be heard. An order of retrial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons. The exercise of power of retrial under Section 386 (b) of the Cr.P.C., depends on the facts and circumstances of each case for which no straitjacket 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. |
