MATHAI Vs. STATE
LAWS(KER)-1963-9-4
HIGH COURT OF KERALA
Decided on September 20,1963

MATHAI Appellant
VERSUS
STATE Respondents


Referred Judgements :-

ABINASH CHANDRA BOSE VS. BIMAL KRISHNA SEN [REFERRED TO]


JUDGEMENT

- (1.)This reference made by the learned Sessions Judge of Tellichery has to be accepted. There can be no doubt that if the evidence actually adduced by the prosecution in a particular case is insufficient to support a conviction, a retrial cannot be ordered simply to give the prosecution another chance of producing further and better evidence. Normally, it is to supply formal defects that the appellate court orders a retrial and not for the purpose of filling up a lacuna in the prosecution evidence. There are a large number of decisions in support of this principle, but it is enough to refer to the decision of the Supreme Court in A. G. Bose v. B. K. Sen ( AIR 1963 SC 316 ). In that case the accused, a practising lawyer was prosecuted under S.409 IPC. for having misappropriated the money belonging to his client, the complainant. The prosecution case was mainly based on a letter alleged to have been written by the accused to the complainant. The accused denied having written that letter and contended that it was a forged document. The prosecution however took no steps to call for expert evidence to prove the genuineness of the handwriting of the accused. The Trial Court acquitted the accused. On appeal to the High Court, the acquittal was set aside and a retrial was ordered by another Magistrate with the direction to give the complainant an opportunity of examining the handwriting expert. Their Lordships held that the order of retrial was entirely erroneous and must be set aside. His Lordship Sinha, C. J., stated that:
"Though the complainant had the fullest opportunity of adducing all the evidence necessary to prove the charge, the prosecution took its chance of having a decision in its favour. In the absence of anything to show that the Magistrate had refused to give an opportunity to the complainant to adduce the necessary evidence the High Court, was not justified in ordering retrial simply because the prosecution did not adduce all the evidence that could have been produced in support of its case".

(2.)The trial in this case was not in any way defective. As stated by the learned Judge it is not part of the duty of the Magistrate to collect evidence for the prosecution. It was for the prosecution to adduce sufficient evidence to sustain the charge and if they had not, for reasons best known to them, adduced sufficient evidence they have only to blame themselves and the appellate court should not put the accused to the botheration and expense of a second trial, simply because the prosecution did not adduce all the evidence that they should have produced. As stated by the Supreme Court in all civilised countries, criminal jurisprudence has firmly established the rule that an accused person should not be placed on trial for the same offence more than once except in very exceptional circumstances. No such circumstances exist in this case and the order of retrial is wholly erroneous and has to be set aside.
In the result the order of retrial is quashed. The learned District Magistrate will now rehear the appeal on the materials available in the case. The reference is accepted.

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