1 2026:HHC:32273 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 277 of 2026 Reserved on: 30.7.2026 Date of Decision: 04.8.2026. Raj Pal Sharma ...Petitioner Versus State of H.P. ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr Divya Raj Singh, Advocate. For the Respondent/State : Mr Jitender Sharma, Additional Advocate General. Rakesh Kainthla, Judge The present petitioner was tried by the learned Additional Chief Judicial Magistrate, Court No.1, District Una, HP (learned Trial Court) for the commission of offences punishable under Sections 27 and 28 of the Drugs and Cosmetics Act (Drugs Act). It was asserted that the complainant, Drug Inspector, inspected the premises of the accused on 03.07.2009, and found that the accused had stocked a huge quantity of allopathic drugs. He demanded the drug license, purchase bill and other 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:32273 documents, but the accused failed to produce them. Hence, he filed a complaint before the Learned Trial Court for the commission of offences punishable under Sections 27 and 28 of the Drugs Act. 2. Learned Trial Court convicted the accused of the commission of offences punishable under Sections 27 and 28 of the NDPS Act and sentenced him as under:- Conviction Sentence Section 27 of the Drugs and Cosmetics Act, 1940 To undergo simple imprisonment for two years, pay a fine of ₹7,000/- and, in default of payment of fine, to undergo simple imprisonment for one month. Section 28 of the Drugs and Cosmetics Act, 1940 To undergo simple imprisonment for one year, pay a fine of ₹1,000/- and, in default of payment of fine, to undergo simple imprisonment for 15 days. Both the substantive sentences of imprisonment were ordered to run concurrently. 3. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal which was decided by the learned Additional Sessions Judge-1, Una, Camp at 3 2026:HHC:32273 Amb (learned Appellate Court). The learned Appellate Court held that the Drugs and Cosmetics Act was amended in the year 2008 with effect from 10.08.2009 and as per Section 32 of the Drugs Act, the accused was to be tried by the Court of Sessions. The offence was committed on 03.07.2009. The Act came into force on 10.08.2009, but the complaint was filed on 31.03.2012. Since the complaint was filed after the commencement of the enforcement of the amended Act, only the Court of Sessions and not the Magistrate could have tried the matter. Reliance was placed upon the judgment of the Hon'ble Supreme Court in SEBI Vs. Classic Credit Limited, 2018 (13) SCC 1 in support of this conclusion. Therefore, the judgment and order passed by the learned Trial Court were set aside, and the learned Trial Court was directed to proceed as per the law. 4. Being aggrieved by the judgment passed by the learned Appellate Court, the accused has filed the present petition asserting that the learned Appellate Court erred in remanding the matter to the learned Trial Court. It was rightly held that the learned Trial Court lacked the jurisdiction to try the case. However, the matter was not to be remanded because it would have amounted to double jeopardy. The learned Appellate 4 2026:HHC:32273 Court could have considered the merits of the evidence. Therefore, it was prayed that the present petition be allowed and the judgment passed by the learned Appellate Court be set aside. 5. I have heard Mr Divya Raj Singh, learned counsel for the petitioner and Mr Jitender Sharma, learned Additional Advocate General, for the respondent/State. 6. Mr Divya Raj Singh, learned counsel for the petitioner, submitted that the learned Appellate Court erred in relying upon the judgment of the Hon'ble Supreme Court in SEBI (supra) because there was a specific provision that all pending proceedings would be governed by the amending Act, which is lacking in the present case. The offence was committed before the enforcement of the amending Act and the learned Magistrate had the jurisdiction to try the matter. The learned Appellate Court could not have remanded the matter as it amounted to double jeopardy and it was beyond the scope of the jurisdiction conferred upon the learned Appellate Court. Therefore, he prayed that the present petition be allowed and the judgment passed by the learned Appellate Court be set aside. 5 2026:HHC:32273 7. Mr Jitender Sharma, learned Additional Advocate General, for the respondent/State submitted that an accused does not have a vested right to be tried by any particular Court and the learned Appellate Court had rightly held that the jurisdiction to try the complaint vested with the Court of Sessions and not the Court of Magistrate on the date of filing of the complaint. The proceedings conducted by the learned Magistrate were without jurisdiction and do not attract the provisions of double jeopardy. The Appellate Court has jurisdiction to order the retrial of a case. There is no infirmity in the judgment passed by the Appellate Court. Hence, he prayed that the present petition be dismissed. 8. I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. 9. In Ramesh Kumar Soni v. State of M.P., (2013) 14 SCC 696: 2013 SCC OnLine SC 185, the State of Madhya Pradesh amended the first schedule of the Code of Criminal Procedure by the Code of Criminal Procedure (Madhya Pradesh Amendment Act), 2007 and provided that the offences punishable under Sections 467, 468 and 471 would be triable by the Court of 6 2026:HHC:32273 Sessions. This amendment was published in Madhya Pradesh Gazette Extraordinary on 22.02.2008. An FIR was registered against the accused on 18.05.2007. These facts were noticed by the Hon’ble Supreme Court as under at page 699: 2. The factual matrix in which the controversy arises may be summarised as under: Crime No. 129 of 2007 for commission of offences punishable under Sections 408, 420, 467, 468 and 471 IPC was registered against the appellant on 18-5-2007, at Bheraghat Police Station. On the date of the registration of the case, the offences in question were triable by a Magistrate of the First Class in terms of the First Schedule of the Code of Criminal Procedure, 1973. That position underwent a change on account of the Code of Criminal Procedure (Madhya Pradesh Amendment) Act of 2007, introduced by Madhya Pradesh Act 2 of 2008, which amended the First Schedule of the 1973 Code and, among others, made offences under Sections 467, 468 and 471 IPC triable by the Court of Session instead of a Magistrate of the First Class. The amendment received the assent of the President on 14-2- 2008 and was published in Madhya Pradesh Gazette (Extraordinary) on 22-2-2008. 10. It was held by the Hon’ble Supreme Court that no case was pending before the Magistrate on the date of the Amendment and the Magistrate was bound to commit any case filed after the Amendment to the Court of Sessions as per the Amended Act. It was observed at page 701: 8. Applying the test judicially recognised in the above pronouncements to the case at hand, we have no hesitation in holding that no case was pending before the 7 2026:HHC:32273 Magistrate against the appellant as on the date the Amendment Act came into force. That being so, the Magistrate, on receipt of a charge-sheet which was tantamount to institution of a case against the appellant, was duty-bound to commit the case to the Sessions as three of the offences with which he was charged were triable only by the Court of Session. The case having been instituted after the Amendment Act had taken effect, there was no need to look for any provision in the Amendment Act for determining whether the amendment was applicable even to the pending matters, as on the date of the amendment no case had been instituted against the appellant nor was it pending before any court to necessitate a search for any such provision in the Amendment Act. The Sessions Judge as also the High Court were, in that view, perfectly justified in holding that the order of committal passed by the Magistrate was a legally valid order and the appellant could be tried only by the Court of Session to which the case stood committed. 11. It was further held that the change of law was procedural and the accused would be tried by the Court of Sessions and not by the Court of Magistrate. It was observed at page 705: 14. The amendment to the Criminal Procedure Code in the instant case has the effect of shifting the forum of trial of the accused from the Court of the Magistrate, First Class to the Court of Session. Apart from the fact that, as on the date the amendment came into force, no case had been instituted against the appellant nor had the Magistrate taken cognisance against the appellant, any amendment shifting the forum of the trial had to be, on principle, retrospective in nature in the absence of any indication in the Amendment Act to the contrary. The appellant could not claim a vested right of forum for his trial for no such right is recognised. The High Court was, in that view of the 8 2026:HHC:32273 matter, justified in (sic not) interfering with the order passed by the trial court. 12. It was laid down by the Kerala High Court in C.P. Udayadivakaran v. State of Kerala, 2012 SCC OnLine Ker 20028 that even though the offence has been committed before the commencement of the amending Act, the case has to be tried by the Special Court, except for the cases which are pending before the Magistrate. It was observed:- 5. I do not find any merit in the submissions made by the counsel that the amendment to the Act brought in by Act 26 of 2008, so far as the trial of the offences in pending cases, even if such offences after the amendment are to be tried by the special court, can be given effect to only prospectively. Section 36AB of the Act, inserted by amendment under Act 26 of 2008, mandates the constitution of special courts for trial of certain offences covered by the Act. Section 36AB of the Act reads thus: “36AB. Special Courts - (1) The Central Government, or the State Government, in consultation with the Chief Justice of the High Court, shall, for trial of offences relating to adulterated drugs or spurious drugs and punishable under clauses (a) and (b) of Section 13, sub-section (3) of Section 22, clauses (a) and (c) of Section 27, Section 28, Section 28A, Section 28B and clause (b) of sub-section (1) of Section 30 and other offences relating to adulterated drugs or spurious drugs, by notification, designate one or more Courts of Session as a Special Court or Special Courts for such area or areas for such case or class or group of cases as may be specified in the notification. 9 2026:HHC:32273 Explanation: In this sub-section, “High Court” means the High Court of the State in which a Court of Session designated as Special Court was functioning immediately before such designation. (2) While trying an offence under this Act, a Special Court shall also try an offence, other than an offence referred to in sub-section (1), with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.” Other than the offences referred to in Section 36AB of the Act, which are exclusively triable by the special court, the rest of the offences punishable under the Act can be taken cognisance of and tried by the magistrate as before. Amendment by inserting Section 36AB to the Act came into force from 10.8.2009. Once such an amendment has come into effect, and by notification a special court has been constituted, cases involving the offences referred to under Section 36AB of the Act, whether their commission was before or after the amendment, if not already finally disposed of by the magistrate, can be tried only by that special court alone. On Annexure A1, the complaint, the magistrate has taken cognisance, and the case is pending trial before him, will not confer jurisdiction on the magistrate to proceed further with the trial of the case when, by virtue of the amendment and insertion of Section 36AB, the offences involved, or any of them, are triable only by a special court. The accused proceeded in the case by the magistrate would lose a right of appeal or revision; even if that be so, it will have no impact in considering the scope of the amendment whether it is prospective or retrospective. So far as change or amendment to any forum or course of procedure, none can claim any vested right. Where there is a change in law of forum or procedure, it operates retrospectively unless otherwise specifically provided. The Supreme Court in “Hithendra Vishnu Takkur and Others” (1994 (4) SCC 602), dilating on various aspects over the scope of an amending act and its retrospective operation, has held thus: 10 2026:HHC:32273 “i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits. ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal, even though remedial, is substantive in nature. iii) Every litigant has a vested right in substantive law, but no such right exists in procedural law. iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.” 6. So far as the forum is concerned, even if it is changed midway by an amending Act, pending a proceeding, it cannot be contended that the party thereto has a vested right to continue such proceedings where it was commenced. Change of forum by an amending Act cannot amount to an invasion of the right of the accused except in a case where there is any objection by way of discrimination or the failure of any other fundamental right. By the Amendment Act 26 of 2008, the magistrate has ceased to have jurisdiction to try the offences covered by Section 36AB of the Act even if such offences had been taken cognisance, as exclusive jurisdiction to try such 11 2026:HHC:32273 offences has been conferred on a different forum, a special court. When that be so, such special court constituted as mandated under Section 36AB alone can try the offences referred to in that Section. 7. The decisions relied upon by the counsel in no way assist the petitioner to contend change of forum under the amendment Act after cognisance of the offence is taken can be given only prospective effect. In Zile Singh's case, referred to above, the effect of an amending Act in relation to the impact on a vested substantive right of a party was considered, and it was held that such amendment has to be treated as prospective unless it is expressly or by necessary implication made to have a retrospective operation. That is not the case here. In Basheer's case referred to above, the constitutional validity of the proviso to sub-section (1) of Section 41 of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, which was challenged as discriminatory, arose for consideration. The challenge was repelled, holding that cases which had already been tried and disposed of before the amendment have to be disposed of in accordance with the provisions covered by the unamended Act. In National Commission of Women v. State of Delhi, the Supreme Court, negativing the challenge canvassed by the petitioner in that case, dilating upon the nonentertainability of the petition, made an observation over the proviso added to Section 372 of the Code of Criminal Procedure. The observation made that the “proviso may not be applicable” to the facts of the case without anything more does not lay down any proposition or throw light on the effect of an amendment Act over the change of forum or procedure. 8. If the magistrate had disposed of the case finally after trial before the amendment inserted under Section 36AB of the Act came into effect, then alone, the unamended Act can have application. Pending trial before the magistrate, amendment having been inserted under Section 36AB of the Act conferring exclusive jurisdiction on the special court over some offences of the Act, the magistrate has no 12 2026:HHC:32273 jurisdiction to proceed with further trial of the case involving such offences. If the offences under the Act taken cognisance of are shown to be exclusively triable by the special court, the magistrate has to commit the case, and that alone was done in the present case. 13. This Court differed with the conclusion of the Kerala High Court that the Magistrate can try the offences other than those triable by the Special Court in SBS Biotech v. State of H.P., 2024 SCC OnLine HP 6578, which was upheld by the Hon’ble Supreme Court in SBS Biotech v. State of H.P., (2026) 6 SCC 353. 14. In the present case, the complaint was filed after the enforcement of the Amendment Act, and the complaint was to be committed to the Court of Sessions in terms of Section 32 of the Amended Drugs Act; hence, the submission that the learned Appellate Court erred in holding that the Magistrate had no jurisdiction is not acceptable. 15. It was submitted that the accused was tried once by the learned Magistrate and he cannot be re-tried as it would amount to double jeopardy. This submission cannot be accepted. It was laid down by the Hon'ble Supreme Court in State of Karnataka v. C. Nagarajaswamy, (2005) 8 SCC 370 that the essential condition for attracting Article 20(2) of the Constitution or Section 300 of Cr.PC are that the Court should have requisite 13 2026:HHC:32273 jurisdiction to take cognisance and try the accused and the Court has recorded an order of conviction or acquittal. It was observed: 17. It is true that in terms of clause (2) of Article 20 of the Constitution no person can be prosecuted and punished for the same offence more than once. Section 300 of the Code was enacted having regard to the said provision. Sub-section (1) of Section 300 of the Code reads as under: “300. Persons once convicted or acquitted not to be tried for same offence.—(1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub- section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof.” 18. The essential conditions for invoking the bar under the said provision are: (i) the court had requisite jurisdiction to take cognisance and tried the accused; and (ii) the court has recorded an order of conviction or acquittal, and such conviction/acquittal remains in force. 16. This position was reiterated in T.P. Gopalakrishnan v. State of Kerala, (2022) 14 SCC 323, wherein it was observed: 24. Section 300CrPC embodies the general rule which affirms the validity of the pleas of autrefois acquit (previously acquitted) and autrefois convict (previously convicted). Sub-section (1) of Section 300 lays down the rule of double jeopardy and sub-sections (2) to (5) deal 14 2026:HHC:32273 with the exceptions. Accordingly, so long as an order of acquittal or conviction by a court of competent jurisdiction remains in force, the person cannot be tried for the same offence for which he was tried earlier or for any other offence arising from the same fact situation, except the cases dealt with under sub-sections (2) to (5) of the section. 25. Section 300 CrPC is based on the maxim nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa, which means that a person cannot be tried a second time for an offence which is involved in an offence with which he was previously charged. As per the decision of this Court in Vijayalakshmi v. Vasudevan [Vijayalakshmi v. Vasudevan, (1994) 4 SCC 656: 1994 SCC (Cri) 1317], in order to bar the trial of any person already tried, it must be shown that: (i) he has been tried by a competent court for the same offence or one for which he might have been charged or convicted at a trial, on the same facts, (ii) he has been convicted or acquitted at the trial, and (iii) such conviction or acquittal is in force. 29. There are three conditions for the application of the clause. Firstly, there must have been previous proceeding before a court of law or a judicial tribunal of competent jurisdiction in which the person must have been prosecuted. The said prosecution must be valid and not null and void or abortive. Secondly, the conviction or acquittal in the previous proceeding must be in force at the time of the second proceeding in relation to the same offence and same set of facts, for which he was prosecuted and punished in the first proceeding. Thirdly, the subsequent proceeding must be a fresh proceeding, where he is, for the second time, sought to be prosecuted and punished for the same offence and same set of facts. In other words, the clause has no application when the subsequent proceeding is a mere continuation of the previous proceeding, for example, where an appeal arises 15 2026:HHC:32273 out of such acquittal or conviction. In order to sustain a plea of double jeopardy, it must be shown that all the aforesaid conditions of this clause are satisfied, vide S.A. Venkataraman [S.A. Venkataraman v. Union of India, 1954 SCC OnLine SC 26: AIR 1954 SC 375]. 17. In the present case, the Magistrate had no jurisdiction to try the complaint because the jurisdiction was conferred upon the Sessions Court. Hence, the first condition that the accused should have been tried by the competent Court is missing, and the provision of Section 300 of CrPC or Article 20(2) will not apply to the present case. 18. It was submitted that the learned Appellate Court had no jurisdiction to order the retrial of the complaint. This submission cannot be accepted. Section 386(b) of CrPC provides that the Appellate Court can reverse the finding and sentence and order him to be retried by a Court of competent jurisdiction. It was laid down by the Hon'ble Supreme Court in P. Manikandan v. CBI, 2024 SCC OnLine SC 3808 that where the Appellate Court finds that the learned Trial Court had no jurisdiction, it can order the retrial of the matter. It was observed: 14. Section 386 (b) of Cr. P.C. enumerates the power of the Appellate Court which inter alia includes the power to order the appellant to be retried by the competent authority or committed for trial in case of appeal from a 16 2026:HHC:32273 conviction. This Court, in several decisions, deals with the power of the Appellate Court to direct a re-trial. 15. The Constitution Bench, while dealing with such an issue, that when such power should be exercised by the Appellate Court in Ukha Kolhe v. State of Maharashtra AIR 1963 SC 1531, observed that: “11. An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. 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.”(Emphasis supplied) 16. In the “Best Bakery Case”, wherein the Trial Court directed the acquittal of the accused person in a case of mass killings, the same was upheld by the High Court of Gujarat while dismissing the criminal appeal; this Court, after considering the facts and circumstances of the case, directed the de novo trial of the accused person by observing that: 17 2026:HHC:32273 “73. … We are satisfied that it is a fit and proper case, in the background of the nature of additional evidence sought to be adduced and the perfunctory manner of trial conducted on the basis of tainted investigation, a retrial is a must and essentially called for in order to save and preserve the justice- delivery system unsullied and unscathed by vested interests. We should not be understood to have held that whenever additional evidence is accepted, retrial is a necessary corollary. The case on hand is without parallel and comparison to any of the cases where even such grievances were sought to be made. It stands on its own as an exemplary one, special of its kind, necessary to prevent its recurrence. It is normally for the appellate court to decide whether the adjudication itself, by taking into account the additional evidence, would be proper or it would be appropriate to direct a fresh trial, though, on the facts of this case, the direction for retrial becomes inevitable.” 17. A Three Judge Bench of this Court in Mohd. Hussain v. State (Govt. of NCT of Delhi) (2012) 9 SCC 408, held that: 41. The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the accused under Section 386 of the Code. That is clear from the bare language of Section 386(b). Though such power exists, it should not be exercised in a routine manner. A de novo trial or retrial of the accused should be ordered by the appellate court in exceptional and rare cases, and only when, in the opinion of the appellate court, such course becomes indispensable to avert failure of justice. Surely this power cannot be used to allow the prosecution to improve upon its case or fill up the lacuna. A retrial is not the second trial; it is a continuation of the same trial and the same prosecution. The guiding factor for retrial must always be the demand of justice. Obviously, the exercise of power of retrial 18 2026:HHC:32273 under Section 386(b) of the Code, will depend on the facts and circumstances of each case for which no straitjacket formula can be formulated but the appeal court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked. (Emphasis supplied) 18. While relying upon the decision of the Constitution Bench in Ukha Kolhe (supra), this court discussed the scope of Section 386 of Cr. P.C. in Ajay Kumar Ghoshal v. State of Bihar (2017) 12 SCC 699, to the effect that: “10. Section 386 CrPC deals with the powers of the appellate court. As per Section 386(b) CrPC 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 retried 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. 11. Though the word “retrial” is used under Section 386(b)(i) CrPC, the powers conferred by this clause are to be exercised only in exceptional cases, where the appellate court is satisfied that the omission or irregularity has occasioned a 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 the trial was vitiated by serious illegality or irregularity on account of the misconception of the 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 evidence or 19 2026:HHC:32273 the court refused to hear certain witnesses who were supposed to be heard. 12. “De novo” trial means a “new trial” ordered by an appellate court in exceptional cases when the original trial failed to make a determination in a manner dictated by law. The trial is conducted afresh by the court as if there had not been a trial in the first instance. Undoubtedly, the appellate court has power to direct the lower court to hold “de novo” trial. But the question is when such power should be exercised…” (Emphasis supplied) 19. This Court in Nasib Singh v. State of Punjab (2022) 2 SCC 89, formulated the principles emerging from several decisions on retrial given by this Court: 33. The principles that emerge from the decisions of this Court on retrial can be formulated as under: 33.1. The appellate court may direct a retrial only in “exceptional” circumstances to avert a miscarriage of justice. 33.2. Mere lapses in the investigation are not sufficient to warrant a direction for retrial. Only if the lapses are so grave as to prejudice the rights of the parties can a retrial be directed. 33.3. 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. 33.4. 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. 20 2026:HHC:32273 33.5. If a matter is directed for retrial, the evidence and record of the previous trial is completely wiped out. 33.6. 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 an 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. (Emphasis supplied) 19. Thus, the Court has jurisdiction to order retrial when the Trial Court has proceeded with the trial in the absence of jurisdiction and the submission that the learned Appellate Court erred in ordering the retrial cannot be accepted. 20. No other point was urged. 21. Thus, there is no infirmity in the judgment passed by the learned Appellate Court requiring any interference from this Court; hence the present revision fails and is dismissed. 22. The parties through their learned counsel are directed to appear before learned Trial Court on _____. 21 2026:HHC:32273 23. The record along with a copy of this judgment be sent forthwith to reach the learned Trial Court well before the date fixed. 24. The observation made hereinbefore shall remain confined to the disposal of the petition and will have no bearing whatsoever on the merits of the case. (Rakesh Kainthla) Judge 4th August, 2026 (Chander)