Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 1318 (MP)

Babulal v. State of M. P.

2008-11-11

N.K.MODY

body2008
ORDER 1. Being aggrieved by the judgment dated 6.5.2008 passed by Ilnd Additional Sessions Judge (Fast Track), Kukshi, in Cr.A. No. 46/08, whereby the judgment dated 11.2.2008 passed by JMFC, Kukshi in Criminal Case No. 688/05, whereby the petitioners were convicted for the offence punishable under section 4-A of Public Gambling Act by sentencing them to undergo six months RI and fine of Rs. 1,000/- each was set aside and the case was remanded to the trial Court for retrial, the present revision petition has been filed. 2. Case of the prosecution was that on 25.10.2005 at about 3 :30 p.m. upon information a search was made in which it was found that on the shop of petitioner No.1 petitioners are gambling on Sri Lanka and India Cricket Match and after receipt of money are issuing the slips. After framing of charges and also after recording of evidence the offence was found proved and petitioners were convicted as stated hereinabove. An appeal was preferred against that order, whereby case was remanded to the leared trial Court with a direction to record the further evidence and decide the case, hence this revision petition. 3. Learned counsel for the petitioners argued at length and submits that the impugned judgment passed by the learned appellate Court is illegal and deserves to be set aside. Learned counsel submits that learned appellate Court can remand the case to trial Court on the basis of any procedural irregularity and illegality committed by trial Court and not for filling up the lacunae left by prosecution in trial. It is further submitted that the sole ground for remanding the case is that the evidence which ought to have been adduced, was not adduced by the respondent during trial. It is submitted that this can hardly a ground for remanding the case. For this contention, reliance is placed on a decision in the matter of Bir Singh v. State of U.P., reported in (1977) 4 SCC 420 , whereby the Hon'ble apex Court has held that it is discretionary power of the appellate Court to take additional evidence in a suitable case, but discretion should not be exercised to fill gaps or lacunae in the prosecution evidence. In view of this learned counsel for petitioners submits that the judgment passed by the learned appellate Court, whereby the case was remanded be set aside with a direction to the learned appellate Court to decide the case on merits. 4. Learned counsel for the State submits that the learned appellate Court has rightly exercised the powers which was conferred in it under section 391 of CrPC. It is submitted that revisional jurisdiction of this Court is limited and no interference is called for in the concurrent findings recorded by the Courts below. Learned counsel submits that the revision petition has no merits, hence be dismissed. Relevant part of section 391 of CrPC reads as under: Appellate Court may take further evidence or directed 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. 5. In the matter of Rambhau v. State of Maharashtra, reported in AIR 2001 Supreme Court 2120, Hon'ble apex Court has observed 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 lacunae but to sub-serve the ends of justice. Needless to record that on an analysis of the Criminal Procedure Code, section 391 is thus akin to Order 41, Rule 27 of the CPC. 6. From perusal of the record, it is evident that the sole ground for which the case was remanded was that the prosecution failed to produce the material evidence for proving the offence. It is well settled that though an appellate Court has power to take additional evidence in a suitable case, but the discretion should not be exercised to fill up gaps or lacunae in the prosecution case. If prosecution was serious about the matter, there was no reason why the relevant documents were not exhibited during course of trial. It is well settled that though an appellate Court has power to take additional evidence in a suitable case, but the discretion should not be exercised to fill up gaps or lacunae in the prosecution case. If prosecution was serious about the matter, there was no reason why the relevant documents were not exhibited during course of trial. In the circumstances, the learned appellate Court was not correct in exercising its discretion in remanding the case with a direction to allow the parties to adduce further evidence as section 391 of CrPC avoids a de novo trial. It is not to fill up the lacunae but to sub-serve the ends of justice. 7. In view of this petition filed by the petitioners is allowed and the impugned judgment passed by the learned appellate Court whereby the judgment passed by the learned trial Court was set aside and the case was remanded, is set aside with a direction to the learned appellate Court to decide the appeal on merits. Parties are directed to remain present before the learned appellate Court on 25.11.2008. 8. With the aforesaid modification, the revision petition stands disposed of. C.C. as per rules.