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2017 DIGILAW 972 (ORI)

Dolagovinda Barala v. Republic of India

2017-09-01

S.K.SAHOO

body2017
JUDGMENT : 1. Heard Mrs. Sujata Jena, learned counsel appearing for the appellant and Mr. Anup Kumar Bose, learned Asst. Solicitor General appearing for the Republic of India. 2. This is an application under section 391 of Cr.P.C. filed by the appellant Dolagovinda Barala with a prayer to accept the copy of the 3rd task force proceeding dated 17.02.1989 as an additional evidence. 3. The appellant along with other co-accused persons faced trial in the Court of learned Special Judge (C.B.I.), Bhubaneswar in T.R. Case No.13 of 2000 and vide impugned judgment and order dated 04.01.2008, though the learned Trial Court acquitted the co-accused persons of all the charges but the appellant was convicted under section 420 of the Indian Penal Code and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 and sentenced to undergo R.I. for a period of one year and to pay a fine of Rs.50,000/- (rupees fifty thousand only), in default, to undergo R.I. for a period of three months on each count for the said offences and the substantive sentences were directed to run concurrently. 4. Mrs. Sujata Jena, learned counsel appearing for the appellant contended that the document which is sought to be adduced as additional evidence on behalf of the appellant was not available with the appellant during course of trial and the appellant applied under the RTI Act and the Public Information Officer, District Industries Centre, Cuttack has supplied the document on 04.09.2010. It is further submitted by the learned counsel for the appellant that the proceeding of the 3rd task force meeting which was held on 17.02.1989 for SEEUY 1988-89 is very much relevant for proper adjudication of the case inasmuch as it is the case of the appellant that at the time finalization of candidates eligible to get benefit under SEEUY Scheme, the appellant was not a part of the selection process and he has been falsely entangled in the case on the ground that he was the person who had played vital role in selecting fictitious persons for getting benefit of SEEUY scheme. She further submitted that the said document was seized by the CBI but it was not adduced as evidence during trial deliberately. 5. Mr. Anup Kumar Bose, learned Asst. She further submitted that the said document was seized by the CBI but it was not adduced as evidence during trial deliberately. 5. Mr. Anup Kumar Bose, learned Asst. Solicitor General appearing for the Republic of India vehemently opposed the prayer made by the learned counsel for the petitioner and contended that the prosecution case against the petitioner as per the charge sheet is that though the Branch Manager, Central Bank of India intimated DIC, Cuttack not to proceed further with the seven applications under SEEUY scheme forwarded under signatures of the appellant but subsequently, letter was sent to the Bank under the signatures of the appellant who was then Manager (Credit), DIC wherein he confirmed the genuineness of the applications and basing on such letter of confirmation, the Bank sanctioned loans in the name of the sponsored applicants and the investigation also revealed that the applicants sponsored by the appellants were fictitious persons and not in existence. It is further contended that by Mr. Bose that in spite of best opportunity available to the appellant during course of trial, he did not avail the same for the reasons best known to him and since provision under section 391 of Cr.P.C. is to be used in exceptional circumstances, if such a document is permitted to be adduced as additional evidence and marked as exhibit at this stage then the prosecution will be deprived of testing the veracity of such document. 6. Scope and ambit of the provisions of section 391 of Cr.P.C. is aptly elaborated by the Hon’ble Supreme Court in the matter of Ashok Tshering Bhutia -Vrs.-State of Sikkim reported in (2011) 4 Supreme Court Cases 402, wherein it is held at follows:- "28. Additional evidence at the appellate stage is permissible, in case of a failure of justice. However, such power must be exercised sparingly and only in exceptional suitable cases where the Court is satisfied that directing additional evidence would serve the interests of justice. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity. 29. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity. 29. The primary object of the provisions of Section 391 Cr.P.C. is the prevention of a guilty man's escape through some careless or ignorant action on part of the prosecution before the Court or for vindication of an innocent person wrongfully accused, where the Court omitted to record the circumstances essential to elucidation of truth. Generally, it should be invoked when formal proof for the prosecution is necessary. xxxxx xxxx 32. In view of the above, the law on the point can be summarized to the effect that additional evidence can be taken at the appellate stage in exceptional circumstances, to remove an irregularity, where the circumstances so warrant in public interest. Generally, such power is exercised to have formal proof of the documents, etc. just to meet the ends of justice. However, the provisions of section 391 Cr.P.C. cannot be pressed into service in order to fill up lacunae in the prosecution case.” 7. In the case of Zahira Habibulla H. Sheikh and another -Vrs.-State of Gujarat and others reported in A.I.R. 2004 S.C. 3114, it is held that the legislative intent in enacting section 391 of Cr.P.C. appears to be 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. It is further held that 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 so do. There is nothing in the provision limiting it to the cases where there has been nearly some formal defect. The matter is one of discretion of the appellate Court. 8. If the appellate Court thinks that it is necessary in the interest of justice to take additional evidence, it shall so do. There is nothing in the provision limiting it to the cases where there has been nearly some formal defect. The matter is one of discretion of the appellate Court. 8. Therefore, it is clear that the provisions under section 391 of Cr.P.C. are meant for sub-serving the ends of justice and can be called in aid if the appellate Court finds that recording of additional evidence is essential in order to secure the ends of justice. However, such power has to be used sparingly and only in exceptional suitable cases and the discretion of the appellate Court is not to be used to fill up the lacunas in the prosecution case or the defence case. 9. P.W.4 has stated that the selection of loan applicants is the responsibility of task force headed by the G.M., D.I.C. and the names selected by the task force are to be sponsored by the Manager, Credit to the Bank. P.W.9 has stated that the General Manager, D.I.C. is the final authority regarding sponsoring of names. P.W.24 has stated that a committee selects the candidates for availing such facility. The committee consists of G.M., Manager (Credit), D.I.C. and representatives of the sponsoring bank. He further states that he did not know if the other members like the officers of the D.I.C. such as Industrial Promotion Officer, Industrial Supervisor, Economic Investigator, Cost Accountants and such other officers as may be ear-marked by the G.M./Project Manager of the D.I.C. are the members of this screening committee. 10. After hearing the learned counsels for the respective parties and on going through the evidence on record, I am of the humble view that the document sought to be adduced as additional evidence by the appellant is relevant for the purpose of effective adjudication of the case. It shows that who were the members present in the 3rd task force meeting which was held on 17.02.1989 for SEEUY 1988-89 and what decision was taken in that meeting. Such a document cannot be said to be filling up the lacuna left by the defence rather it is necessary to be brought on record in the interest of justice and for a just and proper decision of the case. Such a document cannot be said to be filling up the lacuna left by the defence rather it is necessary to be brought on record in the interest of justice and for a just and proper decision of the case. It is a public document and the copy has been issued by the Public Information Officer and his stamps and signatures are appearing on every page of the document. The proceeding of the 3rd task force meeting dated 17.02.1989 was forwarded to different authorities. According to the appellant, such document was not available with him during course of trial which appears to be correct inasmuch as the appellant would not have left such document bringing it to the record had it been available with him and therefore, the appellant cannot be blamed for not proving such document before the learned Trial Court. The judgment was pronouncement on 04.01.2008 and the document came into possession of the appellant on 04.09.2010. Therefore, I am of the view that the objection raised by Mr. Bose is not acceptable and the prayer made by the appellant for additional evidence deserves favourable consideration. 11. Accordingly, the document relating to proceeding of 3rd task force meeting for SEEUY 1988-89 held on 17.02.1989 is marked as Ext.G on behalf of the defence.