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Gujarat High Court · body

2016 DIGILAW 229 (GUJ)

Harishkumar Trikamlal Joshi v. State of Gujarat

2016-02-01

V.M.PANCHOLI

body2016
JUDGMENT : V.M. Pancholi, J. 1. By way of this revision application, which is filed under Section 397 read with Section 401 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the petitioner - original accused has challenged the order dated 07.05.2009 passed by learned Sessions Court, Amreli in Criminal Appeal No. 22 of 2000 as well as the order dated 22.03.2000 rendered by learned Chief Judicial Magistrate, Amreli in Criminal Case No. 1386 of 1991. 2. Heard learned advocate Mr. Ashish Dagli for the petitioner and learned APP Mr. N.J. Shah for the respondent - state of Gujarat. 3. Learned advocate Mr. Dagli mainly submitted that M. Case No. 19 of 1989 was registered before Rajula Police Station against the petitioner for the offence punishable under Sections 406, 408, 409,465, 467, 477A and 34 of the Indian Penal Code. In the said complaint mainly it has been alleged that during the period between 01.09.1986 to 30.06.1987 when the petitioner was serving as a cashier in the Cooperative Bank, Amreli, he has temporarily misappropriated the amount worth Rs. 1,15,000/-. The entire amount has been thereafter deposited by the petitioner - accused. After registration of the FIR, charge-sheet came to be filed and during the course of the trial prosecution examined various witnesses and produced documentary evidence also. The trial court after considering the evidence produced on record, convicted the petitioner - accused for the offence punishable under Section 409 of IPC and sentenced him to suffer Rigorous Imprisonment for a period of three years and fine of Rs. 10,000/- was also imposed and in default of payment of fine, six months Simple Imprisonment was ordered. The petitioner was also convicted for the offence punishable under Section 477-A of IPC and he was sentenced to suffer Rigorous Imprisonment for a period of one year and fine of Rs. 5,000/- and in default of payment of fine, three months Simple Imprisonment and for the offence punishable under Sections 465 and 467, fine of Rs. 10,000/- was imposed and in default of payment of fine, six months Simple Imprisonment was ordered. The order of conviction was passed by the learned Chief Judicial Magistrate on 22.03.2000. The petitioner thereafter immediately preferred the appeal being Criminal Appeal No. 22 of 2000 before the learned Sessions Court, Amreli. 10,000/- was imposed and in default of payment of fine, six months Simple Imprisonment was ordered. The order of conviction was passed by the learned Chief Judicial Magistrate on 22.03.2000. The petitioner thereafter immediately preferred the appeal being Criminal Appeal No. 22 of 2000 before the learned Sessions Court, Amreli. Learned Sessions Court, by the impugned order dated 07.05.2009 dismissed the appeal and therefore the petitioner has preferred this revision application. 4. In the aforesaid background of the facts of the present case learned advocate Mr. Dagli for the petitioner mainly raised the contention that the Appellate Court has without verifying the record and proceedings of the Trial Court decided the appeal and therefore order passed by the Appellate Court is vitiated in view of the provisions contained in Sections 385 and 386 of the Code. Learned advocate for the petitioner has referred the order passed by the Appellate Court and submitted that it is an undisputed fact that the concerned clerk of the Trial Court had destroyed the record and therefore when the record of the Trial Court has been destroyed the only course open for the Appellate Court was to remand the matter back to the Trial Court for retrial or to acquit the petitioner - accused. Though the aforesaid provision was pointed out before the Appellate Court, the Appellate Court failed to consider the same. 4.1. Learned advocate Mr. Dagli has thereafter placed reliance upon the decisions rendered by Allahabad High Court in the case of (1) Sita Ram and others v. State, reported in 1981 CRI.L.J. Page 65, (2) in the case of Brahmanand Shukla v. State of U.P., reported in 2010(69) All CriC 749 : 2010 Law Suit (All) 220l, (3) in the case of Dina Nath and others v. State of U.P., reported in 1983 Crimes page 831 and the decision of Madras High Court in the case of Sornam v. State of Tamil Nadu, Inspector of Police, Thuckaley, reported in 1988 Law Suit (Mad) 463. 4.2. 4.2. After relying upon the aforesaid decisions, learned advocate submitted that in the similar facts of the case before the Allahabad High Court and Madras High Court, the concerned High Courts have quashed the order of conviction passed by the Trial Court and laid down the principle that where it is not possible to reconstruct the record which has been lost or destroyed it is not legally permissible for the appellate court to affirm the conviction of the appellant and if the time lag between the date of the incident and the date on which the appeal comes up for hearing is short, the proper course would be to direct retrial of the case. However, where the matter comes up for consideration after a long gap of years, it would neither be just nor proper to direct re-trial of the case. He, therefore, urged that the order passed by the Appellate Court be quashed and set aside and in the facts of the case when the incident is of the year 1986-1987, this Court may not give direction for re-trial of the case and more particularly when in the present case admittedly the petitioner - accused deposited the alleged amount of misappropriation of Rs. 1,15,000/- even before the registration of the FIR and the allegation is with regard to temporary misappropriation of the said amount. 5. On the other hand, learned APP Mr. Shah submitted that it is true that at the time when the Appellate Court has decided the appeal, record of the trial Court was not available and the same was destroyed. However, merely because the record has been destroyed, benefit cannot be given to the accused when the trial Court itself has examined the evidence produced on record and thereafter passed the order of conviction. At the most this Court may give direction for re-trial of the case. He, therefore, urged that this revision application be dismissed. 6. I have considered the submissions canvassed on behalf of the learned advocates for the parties. I have also gone through the material produced on record as well as the provisions of law and the decisions relied upon by the learned advocate appearing for the petitioner. 7. He, therefore, urged that this revision application be dismissed. 6. I have considered the submissions canvassed on behalf of the learned advocates for the parties. I have also gone through the material produced on record as well as the provisions of law and the decisions relied upon by the learned advocate appearing for the petitioner. 7. It emerges from the record that the alleged incident is of the year 1986-1987 during which period the petitioner - accused was working as a cashier in the bank and misappropriated certain amount and thereafter deposited the same with the bank and thereafter the FIR came to be registered against him. For the said incident, Criminal Case No. 1386 of 1991 was registered with learned Chief Judicial Magistrate, Amreli. The Trial Court after considering the evidence on record passed the order of conviction on 22.03.2000 as observed hereinabove. Immediately thereafter Criminal Appeal No. 22 of 2000 was preferred by the petitioner - accused before the learned Sessions Court. If the order of the Sessions Court is carefully seen, it is revealed that when the Appellate Court called for the record from the trial court it came to the notice of the appellate court that the trial court has destroyed the record of the said case and therefore learned advocate appearing for the petitioner before the Appellate Court requested that in absence of the record, accused be acquitted or alternatively the case be remanded back to the trial court for re-trial. Thus, it is an admitted fact that the record of the trial court was not available with the appellate court and in spite of non-availability of the record and proceedings the appellate court confirmed the order of conviction passed by the trial court. 8. Thus, the questions arise for consideration before this Court in this revision application are (a) whether in absence of record and proceedings, the Appellate Court can confirm the order of conviction passed by the Trial Court? and (b) when the record of the Trial Court is destroyed, what options are available before the Appellate Court? 9. For deciding the aforesaid questions, certain provisions of law are required to be referred to by this Court. Section 385 of the Code deals with "procedure for hearing appeals not dismissed summarily", whereas Section 386 of the Code deals with "powers of the Appellate Court." 10. 9. For deciding the aforesaid questions, certain provisions of law are required to be referred to by this Court. Section 385 of the Code deals with "procedure for hearing appeals not dismissed summarily", whereas Section 386 of the Code deals with "powers of the Appellate Court." 10. Section 385 of the Code provides as under: "385. Procedure for hearing appeals not dismissed summarily. (1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given- (i) to the appellant or his pleader; (ii) to such officer as the State Government may appoint in this behalf; (iii) if the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant; (iv) if the appeal is under section 377 or section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal. (2) The Appellate Court shall then send for the record of the case, if such record is not already available in that Court and hear the parties: Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record. (3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground." 11. Section 386 of the Code provides for the powers of the Appellate Court, which reads as under: "386. Power of the Appellate Court. Section 386 of the Code provides for the powers of the Appellate Court, which reads as under: "386. Power of the Appellate Court. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (a) In an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the Same; (c) in an appeal for enhancement of sentence- (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re- tried by a Court competent to try the offence, or (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; (d) in an appeal from any other order, alter or reverse such order; (e) make any amendment or any consequential or incidental order that may be just or proper; Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal." 12. From the aforesaid provisions contained in the Code, it is clear that if the Appellate Court does not dismiss the appeal summarily, it shall issue notice to the appellant and thereafter it is the duty of the Appellate Court to send for the record of the case, if such record is not already available in the Court and thereafter hear the parties. It is further clear that after perusing the record and after hearing the appellant or his pleader as well as the Public Prosecutor, the Appellate Court can pass orders as provided in Section 386 of the Code. Thus, if the appeal is not summarily dismissed, it is the duty of the Appellate Court to call for the record and proceedings from the trial Court and after perusing the record, the Appellate Court can pass an order of acquittal or confirm the order of conviction or enhance the sentence etc. 13. At this stage, certain provisions contained in Criminal Manual (hereinafter referred to as 'the Manual' for short) are also required to be referred to by this Court while deciding the issue involved in the present application. Rule 361 of the Manual provides that: "361. The record of a substantive criminal proceeding should not be considered due for despatch to the record room until the expiry of the period of appeal or revision application and, if any appeal or revision application has been instituted, until after the disposal of the appeal or revision application. As a matter of precaution, the records of all cases should be kept intact in the sequence of the serial numbers of the institutions, for two months beyond the period of appeal or revision and then put up for filing orders of the Presiding Officer." 13.1. Rule 362 of the Manual provides as under: "362. (i) Immediately after the passing of the filing order in any case the record shall be arranged in four files marked as file "A", file "B", file "C" and file "D". (ii) The arrangement of the record according to this classification is required to be made to simplify the task of maintaining the record in the record room according to the periods for which they are required to be preserved as prescribed below." 13.2. Similarly, Rule 363 of the Manual provides that: "363. (ii) The arrangement of the record according to this classification is required to be made to simplify the task of maintaining the record in the record room according to the periods for which they are required to be preserved as prescribed below." 13.2. Similarly, Rule 363 of the Manual provides that: "363. The classification of the record and the marking and filing thereof as A, B, C, D should be done in accordance with the directions below:-- '(1) The papers, which are required to be preserved permanently, such as judgments in trials held before the Court of Sessions, should be marked "A" and kept in file "A". (2) The papers which are semi-permanent in nature, such as judgments of Court, other than the Sessions Court, should be marked "B" and kept in file "B". (3) The papers which have a bearing on the merits of the case, but which are not to be preserved for a long time, such as deposition, documents produced in evidence which are not required to be returned to the parties, confessions, statements of the accused etc., should be marked "C' and kept in file "C". (4) The papers having no bearing on the merits of the case, such as Vakalatnamas, remand orders, etc., should be marked "D" and kept in file "D". (5) The papers in file "A" shall be preserved permanently. The papers in file "B" shall be destroyed after 30 years. The papers in file "C" shall be destroyed after 5 years. The papers in file "D" shall be destroyed after 6 months. (6) The period prescribed above for the destruction of the record shall be computed from the date of the final decision of the case in the trial Court when no appeal or revision application has been filed and from the date of the final decision of the appellate or revisional Court when an appeal or a revision application has been filed. (7) While it is not possible to enumerate every document, which is required to be included in any particular file, the list of documents which should be included in the Files "A", "B", "C" and "D" respectively is given below for the guidance of the Courts. (7) While it is not possible to enumerate every document, which is required to be included in any particular file, the list of documents which should be included in the Files "A", "B", "C" and "D" respectively is given below for the guidance of the Courts. (8) All papers of cases on the dormant file, except cases under the Motor Vehicles Act and such other Acts as may be specified by the High Court, shall be preserved for 30 years and should be sent to the Record-room after 5 years from the date of the receipt of the charge sheet or the complaint, as the case may be. (9) All papers of cases on the dormant file under the Motor Vehicles Act and other Acts specified by the High Court, shall be despatched to the Record room after two years from the date of the receipt of the charge sheet or the complaint, as the case may be, and shall be destroyed after five years from the said date. LIST "A" (1) Judgments of Court of Session. (2) Such papers in cases of historical or scientific value, as in the opinion of the Sessions Judge should be preserved permanently. LIST "B" (1) Judgments of all Courts, except judgments in trials held by the Sessions Judge. (2) Final orders (including orders as regards disposal of property, orders permitting withdrawal or compounding of cases and orders for payment of compensation and costs.) (3) Warrants of commitment to jail issued by the Sessions Court and warrants returned after execution of sentence in Sessions case (4) Copies of orders on petition for mercy in Sessions cases and the papers connected therewith. (5) Warrants of Commitment issued by the Magisterial Courts and Warrants returned to such Courts' after execution of sentence. LIST "C" (1) Roznama. (2) Complaints and verifications, including those dismissed under Section 203, Code of Criminal Procedure. (3) Orders sanctioning prosecutions. (4) Charges and pleas of accused. (5) Sanction of the Central Government under Section 188 of the Code of Criminal Procedure, 1973. (6) Lists of exhibits. (7) Depositions. (8)Confessions and statements of accused. (9) Documentary exhibits or copies of those returned. (10) Bonds taken from accused for keeping peace or for good behaviour. (11) Papers of police enquiries held on orders of a Magistrate. (12) Reports of Police Officers asking for B and C summaries and orders passed thereon. (13) Registers. (6) Lists of exhibits. (7) Depositions. (8)Confessions and statements of accused. (9) Documentary exhibits or copies of those returned. (10) Bonds taken from accused for keeping peace or for good behaviour. (11) Papers of police enquiries held on orders of a Magistrate. (12) Reports of Police Officers asking for B and C summaries and orders passed thereon. (13) Registers. (14) All papers of appeals and revision proceedings in Sessions Courts except judgments. (15) Charge sheets. (16) Papers in regard to recovery of fines. (17) Papers of appeal excluding final orders against Municipal assessments. (18) Copies of judgments and orders of superior Courts communicated to Lower Courts. (19) Petitions for withdrawing or compounding cases. (20) Complaints with order on them, in uncontested petty cases disposed of summarily. LIST "D" (1) Vakalatnamas and memos of appearances. (2) Remand orders including those passed by other Magistrates under Section 167. (3) Police papers and reports other than those referred to in list "C". (4) Papers subsidiary to orders sanctioning prosecutions. (5) Bail appears and bonds, including appellate orders as to bail. (6) Summons, warrants other than those wherein the particulars as to the period of detention, etc. to be set off under Section428 of Criminal Procedure Code, 1973, are given search warrants, proclamations, executions of processes and all other papers under which attendance of witnesses and accused was obtained. (7) Commissions for examination of witnesses and returns thereto. (8) Applications for copies of decision, adjournments, etc. (9) Notices of appeals received from the Jailor. (10) Writs calling for papers in revision or appeals or copies thereof (if retained with case papers). (11) Intimations of results of appeals and revision applications. (12) Any correspondence as to committal of cases and despatch of papers of appeals, etc. (13)Papers and orders as to transfer of a case from one Court to another. (14) Reports as to marks of violence on under-trial prisoners in a case." 14. Thus, from the aforesaid provisions contained in the Manual, it is clear that documents contained in list "C" as well as list "D" are important documents which are required to be preserved for a particular period prescribed in Rule 363(5) of the Manual. 15. (14) Reports as to marks of violence on under-trial prisoners in a case." 14. Thus, from the aforesaid provisions contained in the Manual, it is clear that documents contained in list "C" as well as list "D" are important documents which are required to be preserved for a particular period prescribed in Rule 363(5) of the Manual. 15. In the present case, from the impugned order passed by the learned Sessions Court it is clear that when the Sessions Court has called for the record from the Chief Judicial Magistrate, Amreli with regard to Criminal Case No. 1386 of 1991 the concerned record keeper informed on 10.10.2008 that only file "B" is available and the said record is sent. However, file "C" and file "D" are destroyed as per the rules. Thus, it is an undisputed fact that the learned Sessions Court has not perused the record and proceedings contained in file "C" and "D" while dismissing the appeal and confirming the order of conviction passed by the learned Trial Court. At this stage, it is required to be noted that it is not the case of the prosecution that present applicant - accused has played any role in disposal of file "C" and file "D" of the aforesaid criminal case. The said files were destroyed after the period prescribed in Rule 363(5) of the Manual. 16. In the present case, the Appellate Court - Sessions Court has observed in the impugned order that the appeal can be disposed of without record if the appeal is with regard to the question of quantum of the sentence and legality of the sentence. The Appellate Court has wrongly relied upon the proviso to sub-section (2) of Section 385 of the Code, which inter-alia provides that if the appeal is only as to the extent or the legality of the sentence. Thus, the Appellate Court can rely upon the said proviso only when the extent or the legality of the sentence is challenged by the accused but when the petitioner - accused has challenged his conviction in the present case, the Appellate Court has committed an error in relying upon the proviso to subsection (2) of Section 385. Section 385 is required to be read with Section 386 of the Code and therefore the Appellate Court has committed an error. 17. Section 385 is required to be read with Section 386 of the Code and therefore the Appellate Court has committed an error. 17. Now, after considering the aforesaid provisions of law contained in the Code as well as in the Manual, the decisions relied upon by the learned advocate for the petitioner - accused are required to be considered. In the case of Sita Ram and Others (supra), the Division Bench of Allahabad High Court has observed in para 11 and 12 as under: "11. On a careful consideration of the relevant statutory provisions and the principle laid down in the cases cited before us we are of the opinion that where it is not possible to reconstruct the record which has been lost or destroyed it is not legally permissible for the appellate court to affirm the conviction of the appellant since perusal of the record of the case is one of the essential elements of the hearing of the appeal. The appellant has a right to try to satisfy the appellate court that the material on record did not justify his conviction and that right cannot be denied to him. We are further of the opinion that if the time lag between the date of the incident and the date on which the appeal comes up for hearing is short, the proper course would be to direct retrial of the case since witnesses normally would be available and it would not cause undue strain on the memory of witnesses. Copies of FIR statements of witnesses under S.161, Cr.P.C., reports of medical examination etc. would also be normally available if the time gap between the incident and the order of retrial is not unduly long. Where, however, the matter comes up for consideration after a long gap of years, it would neither be just nor proper to direct retrial of the case, more so when even copies of FIR and statements of witnesses under Section 161, Cr.P.C. And other relevant papers have been weeded out or are otherwise not available. In such a situation even if witnesses are available, apart from the fact that heavy strain would be put on the memory of witnesses, it would not be possible to test their statements made at the trial with reference to the earlier version of the incident and the statements of witnesses recorded during investigation. In such a situation even if witnesses are available, apart from the fact that heavy strain would be put on the memory of witnesses, it would not be possible to test their statements made at the trial with reference to the earlier version of the incident and the statements of witnesses recorded during investigation. Not only that the accused will be prejudiced but even the prosecution would be greatly handicapped in establishing its case and the trial would be reduced to a mere formality entailing agony and hardship to the accused and waste of time, money and energy of the State. 12. In the present case the incident took place on 23.08.1971. The appellants were convicted by the Sessions Court by an order dated 18.11.1974. The appeal has been pending in this Court for about six years. We are informed that copies of the First Information Report and statements of witnesses recorded under S. 161, Cr.P.C. Have been weeded out and are not available. All attempts to reconstruct the record have proved futile. In such a situation it is not permissible for us to affirm the order of conviction of the appellants, since in the absence of the record we cannot possibly feel satisfied that the appellants have been rightly convicted. Due to lapse of time and non-availability of papers like First Information Report, statements under S.161, Criminal Procedure Code etc., we do not consider it either just or expedient to order retrial of the case." 18. In the case of Brahmanand Shukla (supra), the Division Bench of Allahabad High Court observed and held as under: "(19) In the present case, as we have mentioned in the earlier part of the judgment only a copy of the trial Court's judgment is available and on other documents like FIR, post mortem report, copies of the documents which had been filed by the prosecution and were exhibited during trial, the statement of the witnesses recorded under Section 161 Cr.P.C. Are available despite various attempts to reconstruct the record. The incident is of the year 1979 i.e. the incident took place about 30 years back. In these circumstances, no fruitful purpose would be served by ordering re-trial as the same cannot be conducted at all in absence of these documents. The incident is of the year 1979 i.e. the incident took place about 30 years back. In these circumstances, no fruitful purpose would be served by ordering re-trial as the same cannot be conducted at all in absence of these documents. (20) In the light of the above discussion and the circumstances mentioned above, we have no other alternative but to allow the appeal, set aside the conviction and sentence of the appellant and to acquit him." 19. The Division Bench of Madras High Court in the case of Sornam (supra) has observed thus: "5. As adverted to earlier, the Part II records of the case were destroyed and there is no possibility to reconstruct the records. The materials available on record, namely, charge, plea of the accused, examination of the accused before the Sessions Court, and the exhibits are not sufficient for the disposal of the appeal on merits. In such a circumstance, applying the ratio of aforesaid decisions, the appeal has to be allowed, keeping in mind that the incident had taken place on 28.02.1983 almost six years before. 6. In the result the appeal is allowed, the conviction and sentence are set aside and the Appellant- accused is acquitted. She is directed to be set at liberty forthwith, unless required to be detained in connection with any other case." 20. Similarly, relying upon the aforesaid decision rendered by the Division Bench in case of Sita Ram and others(supra), learned Single Judge of Allahabad High Court in another case of Dina Nath and others (supra) has observed and held as under: "5. I have heard the learned counsel for the appellants and the learned State counsel at great length. The learned counsel for the appellants has drawn my attention to the case of Sita Ram v. State where a Division Bench of this Court has held that where it is not possible to reconstruct the record which has been lost or destroyed it is not legally permissible for the appellate court to affirm the conviction of the appellant since perusal of the record of the case is one of the essential elements of the hearing of the appeal. If the time lag between the date of the incident and the date on which the appeal comes up for hearing is short, the proper course would be to direct retrial of the case since witnesses normally would be available and it would not cause undue strain on the memory of witnesses. Where, however, the matter comes up for consideration after a long gap of years as in the case reported in the ruling it would neither be just nor proper to direct retrial of the case, more so when even copies of the First Information Report and statements of witnesses under Section 161 Criminal Procedure Code and other relevant papers have been weeded out or are otherwise not available. 6. In view of the law laid down in the ruling the conviction recorded by the learned Sessions Judge cannot be sustained and the conviction has to be set aside. The short question that now remains is whether a retrial should be ordered in the circumstances of the case. In the ruling referred to above retrial was not ordered on the ground of delay of eleven years from the date of occurrence and the further fact that the important papers had been weeded out. In the instant case although the occurrence took place about six years ago, the learned counsel for the appellants has drawn my attention to certain portion of the judgment from which he has tried to make out a case that it would be futile to send the case back for retrial and it would amount to harassment to the appellants for no fault of them. It was firstly urged that there is no independent witness in the case. The three witnesses examined in this case were the injured Krishna Murari, his nephew Bhanu Pratap and one Puttu Lal those name was not mentioned in the F.I.R. It was also pointed out that the learned Sessions Judge explained away certain vital contradiction in his statement and did not pay due regard to them. Then the most important point urged in this case was that there was a delay of five hours in lodging the report the distance of the police station from the place of occurrence being five miles only and it was admitted that buses play (sic) ply between the place of occurrence and the police station at frequent intervals. Then the most important point urged in this case was that there was a delay of five hours in lodging the report the distance of the police station from the place of occurrence being five miles only and it was admitted that buses play (sic) ply between the place of occurrence and the police station at frequent intervals. It was further said that instead of going on a bus the complainant went on a Tonga and a distance of five miles even on a Tonga can be covered in less than one hour and so the filing of the report is extremely delayed. From the delay in the report the case built up was that possibly this incident did not take place at 5 p.m. when there was sufficient light but some time late in the evening when there was no light and it was not possible for the complainant to see the assailant and in the background of enmity between the parties which is admitted the appellants have been named in the FIR after deliberations." 21. Now, at this stage, it is required to be noted that though the learned APP and learned advocate appearing for the petitioner - accused have not drawn the attention of this Court to the decision rendered by the Hon'ble Supreme Court in the case of State of U.P. v. Abhai Raj Singh and another, reported in AIR 2004 SC 3235 , this Court is conscious of the view taken by the Hon'ble Supreme Court in the said decision. The said decision is also on the point involved in the present revision application. In the said decision, the Hon'ble Supreme Court observed and held in para 6, 7, 9 and 10 as under: "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. 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. If on the other hand, from the copies available with the prosecuting agency or the defence and/or their respective counsel, reconstruction is possible to be made, said course should be adopted and the appeal can be disposed of as it deserved under course indicated in clauses (i) and (ii). After perusal of the records and hearing appellant's pleader and public prosecutor under Section 377 or 378, the exercise of power as indicated above can be resorted to. As was observed in Bani Singh and Ors. v. State of U.P. ( 1996 (4) SCC 720 ) the plain language of Section 385 makes it clear that if the Appellate Court does not consider the appeal fit for summary dismissal, it must call for the records and Section 386 mandates that after record is received, the Appellate Court may dispose of the appeal after hearing as indicated. 7. A question would further arise as to what happens when the reconstruction is not possible. Section 386 empowers the Appellate Court to order that the case be committed for trial and this power is not circumscribed to cases exclusively triable by the Court of Sessions. (See State of U.P. v. Shankar and Anr. AIR 1962 SC 1154 ). 9. The High Court did not keep the relevant aspects and considerations in view and came to the abrupt conclusion that re-construction was not possible merely because there was no response from the Sessions Judge. The order for reconstruction was on 1.11.1993 and the judgment of the High Court is in Criminal Appeal 1970 of 1979 dated 25.2.1994. 9. The High Court did not keep the relevant aspects and considerations in view and came to the abrupt conclusion that re-construction was not possible merely because there was no response from the Sessions Judge. The order for reconstruction was on 1.11.1993 and the judgment of the High Court is in Criminal Appeal 1970 of 1979 dated 25.2.1994. The order was followed in Criminal Appeal No. 1962 of 1979 disposed of on 16.8.1995. It is not clear as to why the High Court did not require the Sessions Court to furnish the information about reconstruction of records; and/or itself take initiative by issuing positive directions as to the manner, method and nature of attempts, efforts and exercise to be undertaken to effectively achieve the purpose in the best interests of justice and to avoid ultimately any miscarriage of justice resulting from any lapse, inaction or inappropriate or perfunctory action, in this regard; particularly when no action was taken by the High Court to pass necessary orders for about a decade when it received information about destruction of record. The course adopted by the High Court, if approved, would encourage dubious persons and detractors of justice by allowing undeserved premium to violators of law by acting hand in glove with those anti social elements coming to hold sway, behind the screen, in the ordinary and normal course of justice. 10. We, therefore, set aside the order of the High Court and remit the matter back for fresh consideration. It is to be noted at this juncture that one of the respondents i.e. Om Pal has died during the pendency of the appeal before this Court. The High Court shall direct reconstruction of the records within a period of six months from the date of receipt of our judgment from all available or possible sources with the assistance of the Prosecuting Agency as well as the defending parties and their respective counsel. If it is possible to have the records reconstructed to enable the High Court itself to hear and dispose of the appeals in the manner envisaged under Section 386 of the Code, rehear the appeals and dispose of the same, on its own merits and in accordance with law. If it is possible to have the records reconstructed to enable the High Court itself to hear and dispose of the appeals in the manner envisaged under Section 386 of the Code, rehear the appeals and dispose of the same, on its own merits and in accordance with law. If it finds that re- construction 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. The appeals are accordingly disposed of." 22. If the facts of the present case are considered in view of the decisions rendered by the Hon'ble Supreme Court, Allahabad High Court and Madras High Court and in view of the provisions contained in the Code as well as Manual, answer to question (a) is that if the Appellate Court does not dismiss the appeal summarily, it shall issue the notice to the concerned parties and then it shall call for the record from the trial Court and thereafter hear the parties. However, if the appeal is only as to the extent or the legality of the sentence, it is open for the Appellate Court to dispose of the appeal without calling for the record. Thus, in absence of record and proceedings, the Appellate Court cannot confirm the order of conviction passed by the learned trial Court. The answer to question (b) is that when the record of the trial Court is destroyed, two options are available before the Appellate Court; (1) the Appellate Court can direct for reconstruction of file of the trial Court and then the appeal can be considered on its own merits and (2) if the reconstruction of the file is not possible, the Appellate Court can give direction for re-trial and fresh adjudication by the trial Court. 23. 23. The hearing of this application was adjourned from time to time and when this Court has inquired, it has been informed to this Court that it is not possible to reconstruct the file as the incident is of the year 1986-1987 and criminal case is of the year 1991. Appeal was preferred in the year 2000 which was decided in the year 2009 by the learned Sessions Court. Thus, considering the efflux of time and when the record is not available, it is not possible to reconstruct the file and therefore it is not proper for this Court to remand the matter back to the Appellate Court for the said purpose. So far as second option is concerned, it is once again to be noted that the incident is of the year 1986-1987. Therefore, now the witnesses of the case may not be available. Even if the witnesses are available apart from the fact that heavy strain would be put on the memory of witnesses, it would not be possible to test their statements made at the trial with reference to the earlier version of the incident and the statements of witnesses recorded during investigation. Not only that the accused will be prejudiced but even the prosecution would be handicapped in establishing its case and the trial would be reduced to a mere formality entailing agony and hardship to the accused and waste of time, money and energy of the State. The documentary evidence of the case are also not available. Further the petitioner - accused is aged about 66 years by now and even considering the allegations against the petitioner - accused that he had temporarily misappropriated the amount and also considering the fact that before registration of the FIR the alleged amount was deposited by the petitioner - accused and when the incident took place about 30 years back, no fruitful purpose would be served by ordering re-trial. Further, it would amount to harassment to the petitioner - accused for no fault of him. 24. Further, it would amount to harassment to the petitioner - accused for no fault of him. 24. Hence, in peculiar facts and circumstances of the present case and in light of the aforesaid discussion, when the Appellate Court has not adopted either of the aforesaid two options, keeping in mind the directions given by the Hon'ble Supreme Court as well as the orders passed by different High Courts, this Court is left with no other alternative but to allow this revision application by quashing and setting aside the orders passed by the Courts below and to acquit the present petitioner - original accused. 25. In view of the aforesaid discussion, revision application is allowed. The orders passed by both the Courts below are set aside. The conviction and sentence as recorded by the Trial Court and confirmed by the Appellate Court are set aside and the petitioner is acquitted of all the charges levelled against him. His surety and personal bonds are discharged.