Code of Criminal Procedure, 1973–Sec. 386–Retrial–When can be formulated ?–Principles-
(1) The Appellate Court may direct a retrial only in ‘exceptional’ circumstances to avert a miscarriage of justice;
(ii) Mere lapses in the investigation are not sufficient to warrant a direction for retrial–Only if the lapses are so grave so as to prejudice the rights of the parties, can a retrial be directed;
(iii) A determination of whether a ‘shoddy’ investigation/trial has prejudiced the party, must be based on the facts of each case pursuant to a thorough reading of the evidence;
(iv) It is not sufficient if the accused/prosecution makes a facial argument that there has been a miscarriage of justice warranting a retrial–It is incumbent on the Appellate Court directing a retrial to provide a reasoned order on the nature of the miscarriage of justice caused with reference to the evidence and investigatory process;
(v) If a matter is directed for re-trial, the evidence and record of the previous trial is completely wiped out; and
(vi) The following are some instances, not intended to be exhaustive, of when the Court could order a retrial on the ground of miscarriage of justice–
(a) The trial Court has proceeded with the trial in the absence of jurisdiction;
(b) The trial has been vitiated by illegality or irregularity based on a misconception of the nature of the proceedings; and
(c) The prosecutor has been disabled or prevented from adducing evidence as regards the nature of the charge, resulting in the trial being rendered a farce, sham or charade.
