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Rajasthan High Court · body

2015 DIGILAW 921 (RAJ)

Sarita v. Munni Devi

2015-04-24

M.N.BHANDARI

body2015
Hon'ble BHANDARI, J.—By this criminal misc petition, a challenge is made to the order dated 14.10.2014, passed on the application under section 391 CrPC. The application aforesaid was dismissed as not found maintainable to produce documentary evidence at the appellate stage. 2. Learned counsel for petitioners has referred certain judgments, wherein, it is held that documentary as well as oral evidence can be allowed under section 391 CrPC. In view of above, prayer is made to set aside the impugned order and allow the application. 3. Learned counsel for non-petitioner submits that section 391 CrPC applies only for oral evidence and not for documentary. He has referred judgment of this court in the case of “Jugal Kishore vs. Roshan Lal”, (1999 CrLR (Raj) 203). The prayer is made to dismiss the petition as application under section 391 CrPC is not maintainable to lead documentary evidence. Various paras of the judgment in the case of Jugal Kishore (supra) were referred to show as to why section 391 CrPC is not applicable to lead documentary evidence at the appellate stage. 4. I have considered rival submissions of the parties and perused the record. 5. The scope of section 391 CrPC is the issue for determination. The application under the said provision was dismissed holding it to be not maintainable for documentary evidence. Section 391 CrPC is reproduced thus- “391. 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. (2) 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. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry. Section 391 CrPC allows additional evidence, if necessary for the reasons to be recorded. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry. Section 391 CrPC allows additional evidence, if necessary for the reasons to be recorded. The word “evidence” has not been defined under the Code of Criminal Procedure but defined under section 3 of the Indian Evidence Act, 1872, which is reproduced hereasunder - “Section 3. "Evidence" – "Evidence" means and includes- (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;such statements are called oral evidence; (2) all document including electronic records produced for the inspec-tion of the Court, such statements are called documentary evidence;" 6. The definition of the word “evidence” reveals both documentary as well as oral. Section 391 CrPC does not qualify its applicability only for oral evidence. If that would have been so, the word “evidence” would not have been used or if it is used then could not have qualified it for oral evidence only. The reference of the judgment in the case of Jugal Kishore (supra) has been given by learned counsel for non-petitioner. In the said judgment, section 391 CrPC has been made applicable only to lead oral and not for documentary evidence. 7. As against the aforesaid judgment, learned counsel for petitioners has referred various judgments, which include one judgment of the Division Bench. The judgment of the Division Bench is in the case of “Sharad Dhakar & Ors. vs. State of Rajasthan”, (1997 Cr.L.R. (Raj.) 376). Other judgment is in the case of “Umesh vs. State of Rajasthan”, (2004(2) Cr.L.R. 849). A judgment of the Kerala High Court has also been referred in the case of “Jose s/o Immanuel vs. State of Kerala”, (2014 Cr.L.J. 1917). 8. In the case of Sharad Dhakar (supra), Division Bench, considered documentary as well as oral evidence under section 391 CrPC. After taking into consideration both the evidences, it went on the issue whether to be permitted or not. Therein, the Division Bench recorded its finding that documentary evidence should have been permitted taking into consideration the fact and the nature of the documents. 9. After taking into consideration both the evidences, it went on the issue whether to be permitted or not. Therein, the Division Bench recorded its finding that documentary evidence should have been permitted taking into consideration the fact and the nature of the documents. 9. In the case of Umesh (supra), application under section 391 CrPC was held applicable to lead documentary as well as oral evidence. Similar view was taken by the Division Bench of the Kerala High Court in the case of Jose (supra). 10. It would be relevant to refer to the judgment of this court in the case of Jugal Kishore (supra). The judgment gives reasons to allow oral evidence only u/Sec. 391 CrPC. In para 6 and 7, discussion of the issue has been made. 11. I am unable to find as to on what basis the word “evidence” means oral evidence only when the word “evidence” defines it otherwise. 12. The reason given therein is in reference to sub-section(2) of section 391 CrPC where the evidence is to be certified by the Magistrate or the court taking such evidence. The certification by the Magistrate is required only for oral evidence and not for documentary evidence, is not explained. 13. It is also in reference to sub-section(4) of section 391 CrPC. The evidence is made subject to the provision of Chapter XXIII as if it were an inquiry. The court found Chapter XXIII to be applicable only for oral evidence. It is true that sub-section (4) of section 391 CrPC refers to Chapter XXIII but the purpose has not been taken note of. It is only for the purpose as to how the evidence would be recorded. It would be in the manner provided in the said Chapter as if it were an inquiry. Chapter XXIII includes section 272 to 299 CrPC. Section 293 refers to documentary evidence and section 294 CrPC provides proof of certain documents, thus even Chapter XXIII does not speak about oral evidence only. 14. In view of above and taking into consideration earlier judgment of the Division Bench and even subsequent judgment of this court, where interpretation of section 391 CrPC has been given, the documentary as well as oral evidence can be led under the said provision. In view of the above, I am unable to take the view as has been taken in the case of Jugal Kishore. In view of the above, I am unable to take the view as has been taken in the case of Jugal Kishore. The judgment therein is even without referring the definition of the word “evidence” as given in the Evidence Act. The word “evidence” has not been defined under the Code of Criminal Procedure, thus it has been taken from the Evidence Act. 15. The reference of the judgment in the case of Rajeshwar Prasad Mishra vs. The State of West Bengal ( AIR 1965 SC 1887 ) would also be relevant where no restriction was found by the Apex Court on kind of evidence, at the appellate stage. 16. Taking the case in totality, I do not find that dismissal of the application was proper, thus impugned order is set aside with remand of the case to the court below to hear and decide the application under section 391 CrPC on its merits. It would obviously after considering as to whether documentary evidence is relevant and should be permitted after taking the nature of controversy. Both the parties would be at liberty to raise all the issues on merit. The parties shall remain present in the court on the next date of hearing already fixed. With the aforesaid, petition is disposed of.