Case Note & Summary
The matter arose from two criminal revision applications filed before the High Court of Judicature at Bombay, Nagpur Bench, challenging a common appellate judgment dated 21.05.2026. The first revision, Criminal Revision Application No.136 of 2026, was filed by the accused Nilesh Rajabhau Karlekar, while the second, Criminal Revision Application No.196 of 2026, was filed by the Central Bureau of Investigation, Anti Corruption Bureau, Nagpur. The dispute centered on a corruption and impersonation case under the Indian Penal Code, 1860. The trial court had convicted the accused on 17.07.2023 for offences punishable under Sections 171 and 419 of the IPC, sentencing him to imprisonment and fine. The accused appealed, and the first appellate court by its common judgment dated 21.05.2026 partly allowed the appeal, set aside the conviction, and remanded RCC No.1107/2012 to the trial court for retrial. The retrial was directed specifically to recall the complainant, panch witness and trap laying officer to play voice recordings from V.P. No.3/2018 before the court and examine them regarding identification of voices and contents, with opportunity for cross-examination by the accused. Both parties challenged this appellate order: the CBI contended that the appellate court erred in setting aside the conviction merely because voice recordings were not played to certain witnesses, arguing that the recordings had been admitted and proved through forensic expert PW-6, and that no prejudice was caused to the accused. The accused contended that the retrial order effectively allowed the prosecution to fill a lacuna and relied on the Supreme Court decision in Ukha Kolhe v. State of Maharashtra to argue that retrial is exceptional and only for serious illegality or lack of jurisdiction. The High Court examined the trial and appellate records, noting that the trial court had considered the evidence of PW-6, a forensic expert, who identified the SD card and matched voice samples, and that the defence did not challenge the forensic analysis. The High Court observed that the appellate court had made an unwarranted interference in the prosecution's chosen method of proving its case and that directing a retrial would amount to filling prosecution lacuna, which is prohibited. The High Court held that the reason given by the appellate court for retrial—that playing the recordings would have prevented the complainant from denying acquaintance with Sudhakar Rathod—was not appropriate and that the benefit of any procedural lapse should go to the accused rather than be cured by retrial. Applying the principles in Ukha Kolhe, the High Court found that no exceptional circumstances existed to warrant retrial. Accordingly, the High Court set aside the appellate court's order directing retrial and restored the trial court's conviction. The decision favored the prosecution, as the trial court's conviction was upheld.
Headnote
A) Criminal Procedure - Retrial - Retrial Cannot Be Ordered to Fill Prosecution Lacuna - Indian Penal Code, 1860, Sections 171 and 419 - The appellate court set aside conviction and remanded for retrial solely because voice recordings in V.P. No.3/2018 were not played to complainant, panch and trap laying officer; the High Court held that such order effectively allowed the prosecution to fill a lacuna and was impermissible; retrial is exceptional and only for serious illegality or no jurisdiction, as per Ukha Kolhe v. State of Maharashtra, AIR 1963 SC 1531 - Held that the retrial order was unwarranted (Paras 12-14). B) Criminal Law - Proof of Voice Recordings and Forensic Evidence - Non-Playing of Voice Recordings to Witnesses Does Not Vitiate Conviction - Indian Penal Code, 1860, Sections 171 and 419 - The prosecution proved voice recordings through PW-6 forensic expert and defence did not challenge the forensic analysis; the appellate court erred in treating non-playing of recordings to other witnesses as fatal and directing retrial; procedural lapse benefits accused, not cured by retrial - Held that setting aside conviction on that ground was improper (Paras 12).
Issue of Consideration
Whether the appellate court was justified in setting aside the conviction and ordering a retrial solely on the ground that voice recordings in V.P. No.3/2018 were not played before the complainant, panch and trap laying officer; whether such retrial order amounts to filling up prosecution lacuna and violates principles governing retrial.
Final Decision
High Court held that appellate court's order directing retrial was unwarranted and amounted to allowing prosecution to fill lacuna; non-playing of voice recordings did not vitiate trial; setting aside conviction on that ground was improper. The High Court set aside the appellate court's judgment and restored the trial court's conviction.
Law Points
- Retrial not to be ordered to fill prosecution lacuna
- retrial only in exceptional cases
- benefit of procedural lapse goes to accused
- appellate court cannot direct retrial solely for non-playing of voice recordings
- prosecution may choose method of proving evidence
