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2008 DIGILAW 326 (CHH)

BABULAL S/O MUKUND SHAH GUPTA 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 IInd Additional Sessions Judge (Fast Track), Kukshi, in Cr.A. No. 46/08, whereby the judgment dated 11-2-08 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 25-10-05 at about 3 :30 PM 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 learned 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 Vs. State of Uttar Pradesh, 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 he exercised to fill gaps or lacunae in the prosecution evidence. For this contention, reliance is placed on a decision in the matter of Bir Singh Vs. State of Uttar Pradesh, 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 he exercised to fill gaps or lacunae in the prosecution evidence. In view of this learned Counsel for petitioner 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 Cr.PC. 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 not merits, hence be dismissed. Relevant part of Section 391 of Cr.PC reads as under: 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. 5. In the matter of Rambhau Vs. State of Maharashtra, Hon 'ble Apex Court has observed that the doctrine of finality of judicial proceedings does not stand annulled or affected in anyway 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. 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. 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 Cr.P.C. 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. Case remanded.