Judgment :- 1. Kesavan Nair, the appellant in Crl. Appeal No. 332 of 1976 on the file of the I Addl. Sessions Judge, Trivandrum, is the revision petitioner. He was a lower division clerk employed as cashier in the University College, Trivandrum during December 1974. The case against him was that he misappropriated a total sum of Rs. 59.25 due to the University being the tuition fee collected by him from students by falsifying documents. The Chief Judl. Magistrate, Trivandrum, tried him for offences punishable under S.409 and 477A IPC. and on the conclusion of the trial found him guilty under the said sections, convicted him thereunder and sentenced him to suffer simple imprisonment for 3 months on each count with the direction that the sentences shall run concurrently. On appeal, the learned Sessions judge set aside his convictions and sentences and sent back the case to the trial court directing it to take additional evidence and dispose of the case afresh in accordance with law. 2. The counsel for the revision petitioner submitted that S.391 of the Code of Criminal Procedure is the only section in the Code under which an appellate court is empowered to take additional evidence and strongly assailed the judgment of the appellate court on the ground that the direction to dispose of the case afresh is clearly illegal in as much as it has flagrantly violated the mandatory provisions in S.391 Crl. P.C. 3. It is not disputed and is also clear from the judgment that it was invoking the aid of S.391 Cr. P.C. that the appellate court sent back the case for taking additional evidence. S.391 of the Code corresponds to S.428 of the Code of 1898. Sub-sections (1) and (2) of S.391 correspond to and reproduce verbatim sub-section (1) and (2) of S.428. It is not fully correct that S.391 is the only section under which an appellate court can take additional evidence. Powers have been conferred on appellate courts under S.367 and 311 of the Code of Criminal Procedure also to call for additional evidence. Under S.367, when a case is before it for confirmation of a sentence of death, the High Court has been given power to take additional evidence, if it so desires. Powers have been conferred on appellate courts under S.367 and 311 of the Code of Criminal Procedure also to call for additional evidence. Under S.367, when a case is before it for confirmation of a sentence of death, the High Court has been given power to take additional evidence, if it so desires. S.311 is a general section under which a court can take additional evidence by summoning any person as a witness or examining any person in attendance though not summoned or recalling a witness who has already been examined. 4. The scope of the power conferred under sub-section (1) of S.391 appears to be rather wide and is limited and controlled only by the consideration that the appellate court should be of opinion that additional evidence is necessary and should record its reasons: The object of the salutary provisions in the section is just as much the prevention of the escape of a guilty person through some carelessness of the prosecution or the trial court as the vindication of the innocence of a person wrongly accused owing to carelessness or ignorance of one party. There is therefore no differentiation between an appeal against conviction and an appeal against acquittal in the matter of application of this section. There is nothing in. the section which states or indicates that additional evidence can be taken only if it favours the defence and not if it favours the prosecution. The word "necessary" does not import or imply that it is impossible to pronounce judgment without the additional evidence. What the appellate court has to be satisfied is whether additional evidence is necessary in the interest of justice. The necessity for taking additional evidence must be apparent from something on the record and cannot be derived from external information or extraneous source. The section enables an appellate court to call for additional evidence which will explainer clear or supplement within limitations the evidence for the prosecution in support of the charge which has resulted in a conviction. If there is the apprehension of failure or miscarriage of justice by a wrong acquittal or conviction, the court would be justified in exercising its powers in calling for additional evidence. Exercise of powers under this section is purely a matter within the discretion of the appellate court and there is no hard and fast rule fettering this discretion. 5. If there is the apprehension of failure or miscarriage of justice by a wrong acquittal or conviction, the court would be justified in exercising its powers in calling for additional evidence. Exercise of powers under this section is purely a matter within the discretion of the appellate court and there is no hard and fast rule fettering this discretion. 5. Additional evidence must be necessary not because it would be impossible to pronounce judgment but because there could be failure of justice without it. The power in this regard has to be exercised sparingly and only in appropriate cases. Since the court finds that additional evidence is necessary, there is no restriction on the kind or type of evidence that may be received. Such evidence may be formal or substantial. But such evidence should not be received as a disguise for a retrial or to change the nature of the case against the accused. An order under this section should not ordinarily be made to fill up a lacuna or gap in the prosecution evidence where the prosecution has had a sufficient and fair opportunity to adduce evidence and has not availed of it, unless the requirements of justice dictate otherwise. (See Rajeswar Prasad v. State of West Bengal AIR. 1965 S.C.1887). 6. Sub-section (1) of S.391 clearly says that if the appellate court thinks additional evidence to be necessary, it 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. Subsection (2) enjoins that 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. Subsection (3) emphasises that the accused or his pleader shall have the right to be present when the additional evidence is taken; while sub-section (4) insists that the taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry. While the former clause of subsection (1) invests the appellate Court with a specific power, the latter clause speaks of the machinery through which that power is to be exercised. While the former clause of subsection (1) invests the appellate Court with a specific power, the latter clause speaks of the machinery through which that power is to be exercised. The remaining sub-sections deal with the procedure to be adopted by the subordinate court which takes additional evidence and the manner and mode in which such evidence has to be recorded and the appeal has to be finally disposed of. The learned Sessions Judge has evidently overlooked these provisions in the section and has, as rightly pointed out, flagrantly violated the mandatory provisions therein. The section neither authorises the appellate court to order a fresh trial nor allows the trial court to re-decide the case on the additional evidence taken. After having satisfied under this section that additional evidence is necessary, the appellate court grievously erred in ordering a fresh trial and disposal of the case after taking the additional evidence. The judgment of the appellate court suffers from the defects pointed out by the counsel for the petitioner and is vitiated by an illegality as it has offended and violated the salutary provisions in sub-sections (2), (3) and (4) of S.391 of the Code, of Criminal Procedure which are mandatory in nature. The revision petition is therefore allowed, the impugned judgment is hereby set aside, the appellate court is directed to restore the appeal to its file and dispose of the same in accordance with law. Allowed.