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2010 DIGILAW 720 (RAJ)

Sachdeva Electrics v. Shyam Sunder Sharma

2010-03-30

MAHESH BHAGWATI

body2010
JUDGMENT Hon'ble BHAGWATI, J.-By way of these criminal misc. petitions filed under Section 482 of Cr.P.C., the complainant petitioner has prayed to quash and set-aside the order dated 23rd August, 2003 rendered by Special Judge, Fake Currency Note Cases, Jaipur City, Jaipur, wherein the learned appellate court while allowing the application made under Section 391 of Cr.P.C., directed the learned trial Court to take the reply of notice and receipt, on record, examine the witness Anil Saraswat to be produced by the accused Shyam Sunder Sharma in defence and thereafter decide the case afresh. 2. The case of the petitioner is that he lent Rs. 50,000/- on 10th April, 1999 and Rs. 50,000/- on 18th July, 1999 to the accused non petitioner Shyam Sunder Sharma, against which he repaid, Rs. 15,000/- in cash and gave two cheques of rest of the amount of Rs. 85,000/-; one cheque No. 300993 dated 22.2.2000 for an amount of Rs. 45,000/-, and another cheque No: 300994 dated 17th March, 2000 for an amount of Rs. 40,000/-. These cheques were tendered is in the bank, which are alleged to have been dishonoured by the bank on account of insufficient funds. 3. Heard learned counsel for the parties and carefully perused the relevant material on record. 4. Learned counsel for the petitioner canvassed that the accused non petitioner examined himself in defence on 13th August, 2002 and thereafter pleaded before the Court that he did not want to produce any more witness in defence, as a result of which the Court closed defence evidence and adjourned the case for final arguments to 29th August, 2002. Once the accused non petitioner was given ample opportunity to produce defence evidence, there was no occasion to file an application under' Section 391 of CrPC seeking permission to produce Anil Saraswat in defence. The appellate court, without going through the order sheet dated 14th August, 2002, allowed the application filed u/S. 391 of Cr.P.C. and arbitrarily remitted the case to learned trial Court for recording his statements and thereafter decide the case afresh against the provisions of law. Thus, the impugned order passed in appeal by the appellate Court being bad in law deserves to be set-aside. 5. E contra, the learned counsel for the non petitioner contended that the evidence of Anil Saraswat, in the facts and circumstances of the case, was essential to meet the ends of justice. Thus, the impugned order passed in appeal by the appellate Court being bad in law deserves to be set-aside. 5. E contra, the learned counsel for the non petitioner contended that the evidence of Anil Saraswat, in the facts and circumstances of the case, was essential to meet the ends of justice. The learned appellate Court has recorded the reasons for allowing the application under Section 3910f Cr.P.C. and the impugned order is well in consonance with the provisions of law. He further contended that the power of appellate Court under Section 391 can be invoked by the accused also in the interest of justice. He has cited the case of Jahira Habibulla H. Sheikh and Another reported in WLC (SC) Criminal 2004(2) page 236 in support thereof. Learned counsel for the accused non petitioner defended the impugned order and stated the same to be just and proper, which warrants no intervention. 6. It is relevant to record that Section 391 of Cr.P.C. entitles the appellate Court to take further evidence or direct it to be taken by a subordinate court. Its manifest object is the prevention of guilt man's escape through some careless or ignorant proceedings of a trial Court or the vindication of an innocent person wrongly accused where the trial Court through some carelesses or ignorance has omitted to record the evidence of the circumstances essential to the elucidation of the truth. Sub-section (1) of Section 391 comprises of two parts; first, it invests the appellate Court with a specific power, second, it provides for the machinery through which that power is to be exercised. What confers jurisdiction to utilize sub-section (1) of Section 391 is that the Court should be 'the Appellate Court' and that for reasons to be recorded, it should think the additional evidence to be necessary. 7. Adverting to the facts of the instant case, it is noticed that after completion of the complainant's evidence, the accused non petitioner was examined under Section 313 of Cr.P.C. on 27th April, 2002. On 28th June, 2002 the accused non petitioner was allowed to cross-examine PW.1 Rajkumar at the cost of Rs. 1100/-. The accused deposited the cost, availed the opportunity of cross-examining PW.1 Raj Kumar and the complainant's evidence was closed. The case was fixed for adducing defence evidence on 25th July, 2002. On 28th June, 2002 the accused non petitioner was allowed to cross-examine PW.1 Rajkumar at the cost of Rs. 1100/-. The accused deposited the cost, availed the opportunity of cross-examining PW.1 Raj Kumar and the complainant's evidence was closed. The case was fixed for adducing defence evidence on 25th July, 2002. It is further noticed that the accused examined himself as a defence witness on 13th August, 2002 and thereafter he expressed in the Court on 14th August, 2002 that he did not want to adduce any more witness in defence, as a result of which the defence evidence was closed and the case was adjourned to final arguments. The order sheets of the learned trial Court tangibly reveal that the accused petitioner was accorded ample opportunity to produce defence evidence and the same was closed by the Court only when he declined to produce any more witness. However, an application under Section 391 of CrPC came to be filed at the appellate stage. Undeniably and un-disputably, Section 391 of Cr.P.C. confers powers on the appellate Court to take further evidence or direct it to be taken by the subordinate Court, if found necessary to meet the ends of justice. 8. Sub-section (2) of Section 391 Envisages that when the additional evidence is taken by the Court of Sessions 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. 9. Sub-section (3) of Section 391 of CrPC is very relevant for the decision of the instant petitions. It contemplates that the accused or his pleader shall have the right to be present when the additional evidence is taken. It is for this reason that all evidence should be taken in the presence of the accused. 10. A conjoint reading of all these sub-sections (1), (2) and (3) of Section 391 suggest that the additional evidence which is ordered to be recorded or directed to be recorded by the sub-ordinate Court, must be recorded in the presence of the accused or his pleader. It takes me to hold that if the appellate court thinks it necessary in the interest of justice to take additional evidence, it shall do so. It takes me to hold that if the appellate court thinks it necessary in the interest of justice to take additional evidence, it shall do so. It is very pertinent to note that Section 391 is a provision in the CrPC analogous to Section 311, which differs from this Section in two respects; first, the court must record the additional evidence itself and cannot get this done by another court; second, under first part, which is purely discretionary, no condition is laid down for taking of extra evidence, while under the second part, which is mandatory, the evidence must be such as appears to the Court to be 'essential to the just decision of the case'. thus, the second part lays down a far more stringent condition than sub-section (1) of Section 391 where-under it is sufficient if the evidence is 'necessary'. As the power to examine or re-examine any person as a witness is conferred under Section 311 of Cr.P.C. to the Court alone and not to .the parties, similarly, the power under Section 391 of Cr.P.C. is also conferred on the appellate Court and not on the' parties and, therefore, it is the appellate Court alone which can take additional evidence or direct it to be taken by a subordinate court under Section 391 of Cr.P.C. 11. In the instant case, an application under Section 391 of Cr.P.C. was filed by the accused non petitioner before the appellate Court, whereupon the appellate court allowed the application directing the learned trial Court to take relevant documents on record and examine Anil Saraswat in defence and thereafter to decide the matter afresh. The impugned order passed by the learned appellate court is found to be totally arbitrary, erroneous and against is all the settled principles of law. The appellate Court cannot, in exercise of the powers under Section 391, direct the trial Court to take evidence and dispose of the case. By parity of reasoning, appellate Court, in the exercise of the powers under Section 391, cannot direct the trial Court to record a finding on the evidence so taken, which is the special discretion of the appellate Court under Section 391 of Cr.P.C. This Section empowers the appellate Court merely to take additional evidence or direct it to be taken by a subordinate court and not to call upon the lower Court for a finding. When the appellate Court passes such an order, there is no option left before the High Court, but to set-aside the impugned judgment and direct the appellate Court to restore the appeal and dispose it off in accordance with the provisions of law. Section 391 neither authorizes the appellate court to order a fresh trial, nor allows the trial Court to re-decide the case on the additional evidence taken. If such an order is made, it is arbitrary, caprice and illegal. 12. The learned appellate Court vide impugned judgment dated 23rd August, 2003 while allowing the application filed under Section 391 of Cr.P.C. directed the learned trial Court to take documents on record, examine Mr. Anil Saraswat in defence and thereafter decide the case afresh, which is found to be totally illegal, improper and unjust. 13. For the reasons stated above, the criminal misc. petitions filed under Section 482 of Cr.P.C. are allowed. The impugned orders dated 23rd August, 2003 rendered by Special Judge, Fake Currency Note Cases, Jaipur City, Jaipur is set-aside and the appellate Court is directed to restore the criminal appeal No. 153/2003 and 152/2003 and decide the same in accordance with the provisions of law.