DE NOVO TRIAL - BY R.ARCHANA

INTRODUCTION 

“De novo” has its origin from the Latin which means “a new” or “from the beginning”. In the legal field, it is used to describe judicial review that will be conducted as if prior proceedings had never taken place. That is, an issue or a matter will be heard as if it had just commenced for the first time, without taking in to account prior proceedings with respect thereto. De novo trial happens mostly in criminal cases. 

Meaning of “De Novo Trial”?

A De Novo Trial (Retrial) is a new trial or a criminal retrial in which the entire case is presented as if there had been no previous trial.  In a trial de novo, new evidence and witness testimony can be presented “without deference to the initial judgment”- meaning that the outcome of the previous trial is not considered. Trials de novo are similar to criminal appeals, except that new evidence may be introduced, since it is basically a new trial.

WHEN DE NOVO TRIAL MUST BE GRANTED

For an appellant court, to order for a retrial or de novo trial then it must be satisfied that 

. The Court trying the original proceeding had no jurisdiction to try it,or 

. The original trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings.

. Original order is defective.

In these circumstances and in the interest of the justice the appellate Court as it deems  appropriate the accused should be put on his trial again.

In Moti Ram v. Emperor A.I.R. 1936 All. 758 An appellant court may order for a retrial only upon proper grounds such as ground that the original trial has been vitiated by some irregularity , but not merely because it disagrees with the finding of the lower court. In Ratanlal v. Rex A.I.R. 1949 All. 222 If the case appears to be proved on facts and there are formal defects only in the proceedings of the trial court then it is open to the appellant court to direct a retrial. In Emperor v. MohanlalA.I.R.1915 All.185 at 186 The power to order retrial should be sparingly exercised and a retrial should not be ordered unless there are very grave reasons for doing so. In Zahira Habibulla H. Sheikh and Anr. vs. State of Gujarat and Ors. (2004) 4 SCC 158 [Best Bakery case] being an extraordinary case, the Supreme Court was convinced that the witnesses were threatened to keep themselves away from the Court and in such facts and circumstances of the case, not only the Court directed a 'de novo' trial but made further direction for appointment of the new prosecutor and retrial was directed to be held out of the State of Gujarat. The law laid down in Best Bakery case for retrial was in the extraordinary. An order of re-trial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the 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.

WHEN DE NOVO TRIAL (RETRIAL) MUST NOT BE ORDERED?

An order for retrial of a criminal case is made in exceptional cases, and not unless the appellant court is satisfied that the court trying the proceedings has no jurisdiction to try it or the trial was my serious illegalities. In deciding the question whether a retrial should be ordered or not , the court should bear in mind- 

. The harassment the accused has already gone through

. The time which has elapsed between the date of commission of the offence and date of the order of retrial ;

. The expenditure which might have been incurred by the defence as well as the prosecution; and 

. The nature of the evidence available against the accused. 

With a view to find out whether in the circumstances of the case there should be retrial. In Prem Singh v. State of Rajasthan1985 Raj. L. W. 94 the trial court rejected an application by the prosecution to implead  another person also as an accused and no revision was filed against that order . In the appeal against conviction, filed by the original accused, retrial was ordered so as to implead that person also as accused. Held, the order for retrial was wrong and the appellant court was directed to dispose of the appeal in merits.

EVIDENCE IN DE NOVO TRAIL : A retrial in regard to evidence may be ordered when the original trial has not been satisfactory for particular reasons, for example, if evidence has been wrongly rejected which should have been admitted, or admitted when it should have been rejected , or the court had refused to hear certain witnesses who should have been heard or when no fair and proper trial has been heard, or when no cross examination is made when it needed or when some evidence has been recorded errorly. In these circumstances de novo trial can be allowed in relation to evidence. In Nar Singh vs. State of Haryana (2015) 1 SCC 496 some of the important questions like Ballistic Report and certain other incriminating evidence were not put to the accused and the same was not raised in the trial court or in the High Court. It was felt that the accused should have been questioned on those incriminating evidence and circumstances; or otherwise prejudice would be caused to the accused. In such peculiar facts and circumstances, Nar Singh's case was remitted to the trial court for proceeding afresh from the stage of Section 313 Cr.P.C. In Hazari choubey v. State of Bihar1988 Cr. L. J 1390( pat), Where the prosecution did not examine the investigating officer during the trial and eight years had lapsed by the time the appeal came to be disposed of by the high court held that it was not a fit case for retrial. The accused was acquitted of the offence under section 395, IPC. 

DE NOVO TRIAL (RETRIAL ) IN Cr.P.C

Section 386 Cr.P.C. deals with the powers of the appellate court. As per Section 386 (b) Cr.P.C, in an appeal from a conviction, the appellate court may:-

(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

(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.

The word "retrial" is used under Section 386(b)(i) 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 or wrong rejection of evidences or the Court refused to hear certain witnesses who were supposed to be heard. In Ram Nath Bhatt v. State 1985 A.L.J.916  Remand was not considered to be appropriate as the evidence adduced before the trial court was deficient to implicate the accused in a case under the Prevention of Corruption Act. Apart from the general power conferred by Clause(b) of this section, A Session judge was empowered under Section 232 to direct a retrial to be had upon a charge, framed in whatever manner he thinks fit,on the ground that the accused was mislead in his defence by the absence of, or defect in, the charge. When a session court judge considers that the proceeding  have been irregular and irregularity has prejudiced, the accused, he is competent to order for retrial of the accused without referring the case to the high court. Before ordering retrial notice to show cause should be given to the non appellant accussed.

CONCLUSION

The superior court which orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the trouble to reach the court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation. Another most important ground is, in original trial everything will be fresh, like evidence, memory of the witnesses etc., whereas in retrial or de novo trial everything will be changed, the memory of person will not remain same as it was on the original trial. First trial is always considered to be a best trial  in every situation.