Law Web: Whether Appellate court should liberally permit recording of additional evidence in Criminal appeal?

It is therefore seen that the powers under section 391 of

the Code to take additional evidence by the appellate court are

of a discretionary nature and are to be exercised sparingly and

only in suitable cases. The powers under the section have been

held akin to those under Order XLI Rule 27 of the Code of

Civil Procedure, 1908 and in view thereof additional evidence

cannot be tendered at the appellate stage as a matter of right

and the power to be exercised by the appellate court is to be

based on discretion, sound judicial principles and in the

interest of justice. The discretion is to be exercised in suitable

cases and not to fill up gaps and lacunae in the evidence. The

recording of reasons by the appellate court for taking the

additional evidence has been made mandatory with the

salutary objective of operating as a check against a too easy

reception of evidence at a later stage of the litigation. The test

to be applied is as to whether the evidence sought to advanced

is essential for a just decision of the case. {Para 12}

ALLAHABAD HIGH COURT

Case :APPLICATION U/S 482 No. 8420 of 2021

Ramdas Tureha Vs State of U.P.

Author: Hon'ble Dr. Yogendra Kumar Srivastava,J.

1. Heard Sri Ravindra Pal Singh Kashyap, learned counsel

for the applicant and Sri Pankaj Saxena, learned Additional

Government AdvocateI

appearing for the Stateopposite

party.

2. The present application under section 482 of the Code of

Criminal Procedure, 19731 has been filed seeking to quash the

order dated 03.02.2021 passed by Additional District and

Sessions Judge, Court No.4, District Hathras in Criminal

Appeal No.17/2015 (Ramdas vs. State of U.P. and Others),

whereby the application dated 18.01.2021 under section 391

of the Code filed by the applicant for summoning certain

persons as witnesses, has been rejected.

3. Pleadings of the case indicate that by means of an order

dated 28.05.2015, passed by the Additional Civil Judge

(Junior Division)Judicial

Magistrate, Sadabad, District

Hathras, the applicant was convicted and sentenced under

sections 419 and 420 of the Indian Penal Code2 pursuant to a

criminal trial. The trial court while considering the question as

1 The Code

2 IPC

to whether the applicantaccused

could be held guilty of

concealing his original caste while contesting the panchayat

elections, has held that though the applicant had

misrepresented his caste in the nomination form but he had

neither utilized the caste certificate nor had he appended the

same alongwith the nomination form. Accordingly, it was held

that the charges against the applicant under sections 419 and

420 IPC were fully proved but since the applicant did not

utilize the caste certificate the charges under sections 467, 468

and 471 IPC were not proved and he was acquitted of the said

charges.

4. Aggrieved against the aforesaid order the applicant

preferred an appeal being appeal no.17 of 2015 and during

the pendency of the aforesaid appeal an application dated

18.01.2021 was moved by the applicant seeking invocation of

the provisions under section 391 of the Code for summoning

certain persons as witnesses and recording of additional

evidence by the appellate court.

5. The Additional District and Sessions Judge in terms of

order dated 03.02.2021, has rejected the aforementioned

application after taking into consideration the relevant facts

and particularly taking note of the fact that the appeal had

been filed against the judgment of the trial court dated

28.05.2015, by means of which the applicantaccused

had

been convicted and sentenced under sections 419 and 420 IPC

and despite the lapse of more than five years the appeal was

not being argued and the application seeking summoning of

witnesses had been filed only with a view to delay the

proceedings. The order also records that the applicant had not

moved any application for summoning of the aforesaid

persons as witnesses during the course of the trial and there

was no justification for their summoning at the stage of

appeal.

6. Learned counsel for the applicant, apart from referring

to the factual aspects of the case, has not been able to point

out any material error or illegality in the order passed by the

court below refusing to entertain the application for

summoning of witnesses at the stage of appeal.

7. Learned Additional Government AdvocateI

submits that

the powers under section 391 of the Code for taking further

evidence are to be exercised sparingly and it is not open to the

applicant to seek invocation of the same as a matter of right.

8. In order to appreciate the rival contentions the

provisions with regard to taking additional evidence by the

appellate court under section 391 of the Code may be

adverted to. Section 391 reads as follows:

“391. Appellate Court may take further evidence or direct

it to be taken.— (1) In dealing with any appeal under this

Chapter, the Appellate Court, if it thinks additional evidence

to be necessary, shall record its reasons and may either take

such evidence itself, or direct it to be taken by a Magistrate, or

when the Appellate Court is a High Court, by a Court of

Session or a Magistrate.

(2) When the additional evidence is taken by the Court of

Session or the Magistrate, it or he shall certify such evidence

to the Appellate Court, and such Court shall thereupon

proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be

present when the additional evidence is taken.

(4) The taking of evidence under this section shall be subject

to the provisions of Chapter XXIII, as if it were an inquiry.”

9. Section 391 of the Code empowers the court to admit

additional evidence at the appellate stage, if it considers that

such additional evidence is necessary. The power to be

exercised is of a discretionary nature and cannot be utilized to

fill up gaps and lacunae in the evidence.

10. The appellate court's power to receive additional

evidence under section 391 of the Code fell for consideration

in Rambhau and Another Vs. State of Maharashtra (2001) 4 SCC 759 and it was held that the powers under the section being in the nature of an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. It was stated thus:

“3.Be it noted that no set of principles can be set forth for such

an exercise of power under Section 391, since the same is

dependent upon the fact situation of the matter and having

due regard to the concept of fair play and justice, wellbeing

of the society.

4. Incidentally, Section 391 forms an exception to the general

rule that an Appeal must be decided on the evidence which

was before the Trial Court and the powers being an exception

shall always have to be exercised with caution and

circumspection so as to meet the ends of justice. Be it noted

further that the doctrine of finality of judicial proceedings

does not stand annulled or affected in any way by reason of

exercise of power under Section 391 since the same avoids a

de novo trial. It is not to fill up the lacuna but to subserve

the ends of justice. Needless to record that on an analysis of the

Civil Procedure Code, Section 391 is thus akin to Order 41

Rule 27 of the Civil Procedure Code.”

11. The nature, scope and object of the powers to be

exercised under section 391 of the Code was also examined in

Zahira Habibulla H. Sheikh & Anr vs State Of Gujarat &

Ors (2004) 4 SCC 158 and it was held that though under the provision a wide

discretion has been conferred, the powers could not be

exercised for filling up any lacunae and the appellate court

while directing taking of additional evidence was required to

record reasons for the same. The powers under section 391 of

the Code were held to be in the nature of exception to the

general rule and it was stated that the same must be exercised

with great care. It was observed as follows:

“47. Section 391 of the Code is another salutary provision

which clothes the Courts with the power to effectively decide

an appeal. Though Section 386 envisages the normal and

ordinary manner and method of disposal of an appeal, yet it

does not and cannot be said to exhaustively enumerate the

modes by which alone the Court can deal with an appeal.

Section 391 is one such exception to the ordinary rule and if

the appellate Court considers additional evidence to be

necessary, the provisions in Section 386 and Section 391 have

to be harmoniously considered to enable the appeal to be

considered and disposed of also in the light of the additional

evidence as well. For this purpose it is open to the appellate

Court to call for further evidence before the appeal is disposed

of. The appellate Court can direct the taking up of further

evidence in support of the prosecution; a fortiori it is open to

the Court to direct that the accused persons may also be given

a chance of adducing further evidence. Section 391 is in the

nature of an exception to the general rule and the powers

under it must also be exercised with great care, specially on

behalf of the prosecution lest the admission of additional

evidence for the prosecution operates in a manner prejudicial

to the defence of the accused. The primary object of Section

391 is the prevention of guilty man's escape through some

careless or ignorant proceedings before a Court or vindication

of an innocent person wrongfully accused. Where the Court

through some carelessness or ignorance has omitted to record

the circumstances essential to elucidation of truth, the exercise

of powers under Section 391 is desirable.

48. The legislative intent in enacting Section 391 appears to

be the empowerment of the appellate court to see that justice

is done between the prosecutor and the persons prosecuted

and if the appellate Court finds that certain evidence is

necessary in order to enable it to give a correct and proper

findings, it would be justified in taking action under Section

391.

49. There is no restriction in the wording of Section 391 either

as to the nature of the evidence or that it is to be taken for the

prosecution only or that the provisions of the Section are only

to be invoked when formal proof for the prosecution is

necessary. If the appellate Court thinks that it is necessary in

the interest of justice to take additional evidence it shall do so.

There is nothing in the provision limiting it to cases where

there has been merely some formal defect. The matter is one

of the discretion of the appellate Court. As reiterated

supra,

the ends of justice are not satisfied only when the accused in a

criminal case is acquitted. The community acting through the

State and the public prosecutor is also entitled to justice. The

cause of the community deserves equal treatment at the hands

of the Court in the discharge of its judicial functions.”

12. It is therefore seen that the powers under section 391 of