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2013 DIGILAW 358 (CHH)

Govind Chauhan v. Sriram Sonboir

2013-12-12

GOUTAM BHADURI

body2013
ORDER Goutam Bhaduri, J. 1. Since the common question of law arises in all the above revisions, therefore, they are decided simultaneously by this identical order. These are the revisions under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short 'the Code'), whereby the application moved by the appellant/accused under Section 391 of the Code has been dismissed by the Second Additional Sessions Judge, Balod to take further evidence in the case. 2. The brief facts of the cases are that, the case under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') was filed by the respondent/complainant against the applicant/accused before the Judicial Magistrate First Class, Dallirajhara, District--Balod. The fact is not in dispute that while the case was pending before the Judicial Magistrate First Class, after closure of the evidence of the complainant, the case was fixed for time to time of the applicant/accused and ultimately, since the applicant/accused could not produce the witnesses, his right to adduce evidence was closed on 04.12.2012. The said closure of right to evidence was challenged before the revisional Court i.e. Court of Additional Sessions Judge, Balod. The Additional Sessions Judge, Balod by an order dated 28.02.2012 allowed the revision preferred by the applicant/accused and by such order the applicant/accused was given one and a half months time to adduce the defence evidence, predominantly that of the handwriting expert of Dr. Sunanda Dhenge. The order was communicated to the trial Court and on 02.03.2012. Thereafter, the trial Court fixed the complaint case on 13.04.2012 to produce the evidence of handwriting expert by this accused in terms of the order of Additional Sessions Judge. The trial Court by its order dated 02.03.2012 further ordered and refused to issue summons to procure the other defence witnesses, other than that of handwriting expert, Dr. Sunanda Dhenge. 3. Pursuant to such order, the applicant/accused was granted two days time to pay process fees so as to procure the presence of witness before the Court. Accordingly, the process was paid to procure the evidence of the handwriting expert, Dr. Sunanda Dhenge on the date of hearing i.e. 13.04.2012 for which it was filed. On 13.04.2012 an application was preferred on behalf of the summoned witness i.e. handwriting expert, Dr. Sunanda Dhenge for condonation of her appearance. Accordingly, the process was paid to procure the evidence of the handwriting expert, Dr. Sunanda Dhenge on the date of hearing i.e. 13.04.2012 for which it was filed. On 13.04.2012 an application was preferred on behalf of the summoned witness i.e. handwriting expert, Dr. Sunanda Dhenge for condonation of her appearance. The witness moved this application on the ground that since the expert is required to give evidence in a sessions trial before the Court of 9th Additional Sessions Judge at Bilaspur on the same day i.e. 13.04.2012, as such time was prayed for. The learned Court of Judicial Magistrate First Class after hearing the parties passed an order, whereby it was held that since, Dr. Sunanda Dhenge, handwriting expert was served through the summons on 10.03.2012 itself and therefore, the Court observed that when the summons were served earlier to the date fixed it should have been disclosed at the very moment itself. It was further observed that the expert had only filed such application for adjournment. It was further observed in the order that since one & a half month time was granted by, way of last chance, the Court of Sessions Judge in the revisional order, as such, it was the duty of the applicant to procure his defence on the date before the Court to adduce evidence. Since the presence of witness could not be procured as such the right to adduce the evidence was closed. 4. Subsequently, the matter was fixed for 16.04.2012 and the matter was finally heard and the learned Court below had passed the order. By such order, the applicant was held guilty of the offence and he was convicted under Section 138 of the Act and sentenced to one year R.I. and a compensation was awarded for. 5. This order was subject of challenge before the Second Additional Sessions Judge, Balod. During the pendency of such appeal, the appellant/applicant had moved an application under Section 391 of the Criminal Procedure Code, wherein the appellant/accused prayed for to adduce evidence of the handwriting expert as also the other witnesses namely the officers from the Bank and the person from the Postal Department in defence. The said application was moved before the Additional Sessions Judge on 06.07.2013. The learned Court below after hearing the application had dismissed it by an order dated 22.07.2013. The said application was moved before the Additional Sessions Judge on 06.07.2013. The learned Court below after hearing the application had dismissed it by an order dated 22.07.2013. The Court of Second Additional Sessions Judge had held that the trial Court had given ample opportunities to the appellant/accused to adduce his evidence which was not availed by him. It was observed that after initial order of right foreclosure to adduce evidence, the learned Revisional Court/Sessions Court at first instance by an order dated 28.02.2012 had given one & a half months time for evidence. Under this background, the application under Section 391 of the Cr.P.C. was rejected by the Appellate Court. 6. The Hon'ble Supreme Court in a law laid down in case of Rambhau and another v. State of Maharashtra (2001) 4 SCC 759 : ( AIR 2001 SC 2120 ), has laid an analogy of Section 391 of the Code as under: 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 sub-serve 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. The Hon'ble Supreme Court has laid down the principle that the provision of Section 391 of the Cr.P.C. are akin to Order 41, Rule 27 of the Civil Procedure Code, which empowers the appellate Court to invoke the power u/S. 391 of Cr.P.C. to adduce evidence in a given circumstances of the case to sub-serve the ends of justice. 7. Furthermore, the Hon'ble Supreme Court in a law laid down in case of Zahira Habibulla H. Sheikh and another v. State of Gujarat and others (2004) 4 SCC 158 : ( AIR 2004 SC 3114 ), has held as under: 47. 7. Furthermore, the Hon'ble Supreme Court in a law laid down in case of Zahira Habibulla H. Sheikh and another v. State of Gujarat and others (2004) 4 SCC 158 : ( AIR 2004 SC 3114 ), has held as under: 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. 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. 50. In Rambhau and Anr. v. State of Maharashtra ( 2001 (4) SCC 759 ) : ( AIR 2001 SC 2120 ) it was held that the object of Section 391 is not to fill in lacuna, but to sub-serve the ends of justice. The Court has to keep these salutary principle in view. Though wide discretion is conferred on the Court, the same has to be exercised judicially and the Legislature had put the safety valve by requiring recording of reasons. The reading of law laid down by the Hon'ble Supreme Court clearly leads to form an opinion that the legislative intent in enacting Section 391appears to be the empowerment of the appellate court to see that justice is done between the parties 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 allowing further evidence under Section391. 8. Now if in the given set of facts the impugned order is tested, it lead to believe that the appellate Court completely swayed array by the fact of reopening of evidence. Admittedly, the handwriting expert was summoned through the process of Court to appear on 13.04.2012. On the day an application was moved along with the letter of handwriting expert that Dr. Sunanda Dhenge has to appear on the same day as a witness in a sessions trial at Bilaspur before 9th ASJ/ADJ. Admittedly, the handwriting expert was summoned through the process of Court to appear on 13.04.2012. On the day an application was moved along with the letter of handwriting expert that Dr. Sunanda Dhenge has to appear on the same day as a witness in a sessions trial at Bilaspur before 9th ASJ/ADJ. The learned trial Court thereafter closed the case and fixed the matter for final hearing on 16-4-2012 and passed the order. After conviction an appeal was filed by the applicant/appellant before the Appellate Court and before the Appellate Court the application was preferred u/S. 391 of Cr.P.C., which was dismissed. 9. The learned appellate Court, as appears failed to respond to the cause and principle laid down u/S. 391 of Cr.P.C. The appellate Court too failed to exercise the power u/S. 391 of Cr.P.C., which is premised order of do substantial justice to avoid de novo trial. Admittedly the applicant had already summoned to procure attendance of handwriting expert witness for 13-4-2012 through process of Court. However, for no fault of the applicant, the said expert did not attend the date on 13-4-2012 on the ground that on the same day the witness had to appear as a witness in a sessions case at Sessions Court, Bilaspur. So under these circumstances the order of trial Court to close the right of evidence of applicant/accused appears to be prima facie wrong. Since thereafter the final orders were passed and applicant/accused was convicted, the accused appellant thereafter had the only opportunity left open to him was to seek a prayer to adduce evidence u/S. 391 of Cr.P.C. before the appellate Court. So when such application was moved it was rejected reiterating the earlier grounds. 10. In the instant case, the defence wanted to adduce the evidence of the handwriting expert along with other evidences. In a proceedings u/S.138 of Negotiable Instruments Act, the evidence of an handwriting expert may be necessary for elucidation of truth between parties. 11. So when such application was moved it was rejected reiterating the earlier grounds. 10. In the instant case, the defence wanted to adduce the evidence of the handwriting expert along with other evidences. In a proceedings u/S.138 of Negotiable Instruments Act, the evidence of an handwriting expert may be necessary for elucidation of truth between parties. 11. Without going into the merits of the ensuing evidence which would be laid, I am of the considered opinion that the appellate Court has committed the wrong by dismissing the application under Section 391 of the Code on the ground of delay only, since, the same cannot be a ground to dismiss an application under Section 391 of the Cr.P.C. as it would then defeat the very purpose & intent of the statute. 12. In a result, the revisions are allowed with a direction that the accused/appellant shall be entitled to adduce the evidence of expert as it was originally ordered by the revisional Court vide order dated 28.02.2012. The appellant shall be at liberty to procure the attendance of the witness through the process of Court as allowed under the statute. It is further directed that the said process of evidence shall be carried out within 2 months from the date of this order. With these direction, the revisions are allowed.