- (1.) HEARD Sri P. N. Misra for the appellant and learned A. G. A.
(2.) 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 IVth Addl. District and Sessions Judge, Bareilly in S. T. 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'ble G. P. Mathur and Hon'ble 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 drown to the decision of the Apex Court in State of U. P. v. Abai Raj Singh and Anr. , 2004 (2) JIC 337 (SC) : 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 18/19-11-1979 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 month, 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.
(3.) 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 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 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 judgment shall operate and the matter shall stand closed. ";