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Criminal Appeal No. 967 of 1959, decided on 28th November 1960.

‑Powers of Appellate Court‑Records stolen and no copies available for reconstruction of record‑Re‑trial ordered.

Under section 423 of the Criminal Procedure Code, 1898, unless the record is before the Appellate Court, that Court is not in a position to decide the appeal on merits. Where,, however, the record of the case is stolen and there are no copies available for the reconstruction of the record and if the case is of a serious nature the accused cannot be acquitted on the ground that the record of the case has been lost. With a view to secure the ends of justice in such circumstances, the High Court will be justified in exercising its inherent jurisdiction under section 561‑A of the Code in ordering a retrial. The fact that the accused will have to undergo expense and inconvenience of a retrial can, however, be taken into consideration by the lower Court in imposing the sentence in case the accused is found guilty of offence.

Lai Chand v. Emperor A I R 1926 Nag. 79 and Sutish Chandra Mitra v. Manmatha Nath Mitra A I R 1921 Cal. 165 distinguished.

In re : Sevugaperumal and others A I R 1943 Mad. 391 rel.

Hakim Muhammad Sardar Khan for Appellant.

Miss R .Qari and M. B. Zaman, A. A.‑ G., for Respondent.

Dates of hearing: 17th and 28th November 1960.

Bati, aged 22 years, was tried by Sardar Khalid Mahmud, section 30 Magistrate of Mandi Baha‑ud‑Din, for committing rape on Mst. Fatima, a girl aged 13 years. By his order dated 13‑8‑1959, he convicted him under section 376 of the Pakistan Penal Code and sentenced him to seven years, rigorous imprison ment. On 12‑10‑59, he filed an appeal in this Court against his conviction and sentence. In due course the records were sent for. The Additional District Magistrate, Gujrat, informed this Curt that the record was stolen from the Court of the Magistrate on the night between the 23rd and 24th of September 1959. The District Magistrate, Gujrat, was then asked to get the record reconstructed from all available sources and to submit the same to this Court. He however expressed his inability to reconstruct the record as the counsel for the parties had no records with them and were helpless in the matter.

3. Section 423 (1) of the Code of Criminal Procedure provides that the appellate Court shall send for the record of the case and after perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, the. Court may decide the appeal in the manner specified therein. In view of this provision of law it is quite clear that unless the record is before the Appellate Court, the Court is not in a position to decide the appeal on merits.

3. Learned counsel for the appellant has urged that under the circumstances, the appellant should be acquitted and in support of this prayer he has relied on Lai Chand v. Emperor (A I R 1926 Nag. 79) and Satish Chandra Mitra v. Manmatha Nath Mitra (A I R 1921 Cal. 1615). In both these cases the records had been destroyed. These cases related to offences which had been tried summarily under section 263 of the Code of Criminal Procedure. It was held that the Court was not in a position to from an opinion on the propriety of the conviction, and accordingly the convictions and sentences in both the cases were set aside.

4. In the present case, however, I am not prepared to accede to this request of the learned counsel for the appellant, because the case is of a serious nature. In the above‑mentioned cases, the t offences involved were very minor. If the appellant were to be acquitted on the ground that the record of the case has been lost, it would certainly encourage the culprits to get the records destroyed and then claim an acquittal. In similar circumstances where the offences involved were quite serious, retrial was ordered by a learned Judge of the Madras High Court, In re Sevugaperumal and others (A I R 1943 Mad. 391). But in that ruling no provision of law was cited on the basis of which the order was passed.

5. In the absence of any express provision of law on the subject I am of the view that the case is governed by section 561‑A of the Code of Criminal Procedure, which reads as follows :‑

"Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

With a view to secure the ends of justice I think that in the circum stances of the case, this Court will be justified in exercising its inherent jurisdiction in ordering a retrial. I am conscious of the fact that the accused will have to undergo expense and incon venience of a retrial, but this matter can be taken into consideration by the Magistrate in imposing the sentence in case the accused is found guilty of the offence.

6. For the reasons stated above I set aside the conviction and sentence of the appellant and remit the case to the Court of the Magistrate with the direction that the accused be retried in accordance with law. In the meantime the appellant is allowed bail to the satisfaction of the Magistrate concerned till the disposal of the case. If on retrial the Magistrate holds him guilty of the offence, then in that case the Magistrate while awarding the sentence should also take into consideration the period of imprison ment already undergone by him.

K. B. A.

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